Specialized Relevance Rules 407-411

Evidence Tree – ROUTE OF ADMISSIBILITY

1. First: evidence must be good under R. 401: if the evidence has any tendency to make a material fact more or less probable

2. Then, evidence is admissible pursuant to 402, unless it is barred by the stated exceptions OR some other rule

3. Look for specific exclusion rules first, (i.e. 408),

4. If nothing specifically excludes, then go to 403 and determine if its prejudice outweighs its probative value

5. If it does not, then evidence is admissible.

Why Do We Have the Specialized Relevance Rules (Why not just a 403 analysis)?:

1. Replacing the special rules with multiple ad hoc decisions would expand judicial expression and could breed arbitrary and biased decision making – possibly promote forum shopping to seek out judges whose evidence views meet their needs

2. Similar to #1, loss of the special evidence rules would lead to a loss of predictability

3. Similar to 1 and 2, trial prep would grow more complex as litigants tried to anticipate all possible outcomes of the judge’s discretionary weight tests

4. Would slow down litigation

5. Because criminal D’s have rights that may be unprotected by ad hoc rule making, there probably would have to be different rules for criminal and civil litigation

Rules 407-411, In general

Dual Rationales to these rules:

1. Relevance, and

2. Public Policy

Relevance: A 403 judgment. The restrictions in these rules have essentially been held as a matter of law that their probative value is outweighed by their prejudice.

Policy (in instances whether it may be unclear whether a piece of evidence falls within a particular rule, address the policy concerns!): these rules look like privileges which have no relevance or reliability-based rationale; they simply prioritize other values or purposes entirely.

Subsequent Remedial Measures (407)

• Maine and R.I. ALLOW such evidence that would normally violate 407. However, 403 most likely still applies

Tuer v. McDonald: Decedent’s wife sued after her husband was killed by failure to put him back on a particular drug. After the death, the hospital took a remedial measure and changed the prodecure in which they administer the drug in a situation similar to P’s husband’s. P wanted to submit such evidence of the remedial measure to prove that such action was feasible at the time of her husband’s death, and two impeach the testimony of the Dr. who said he thought it would have been “unsafe” to re-administer the meds. Two main issues in the case, what feasibility means and whether there is grounds for impeachment

• Feasibility: Dispute essentially over whether feasibility in this context means whether it was possible to re-administer the meds, or whether the Dr. thought it was reasonable at the time. Big takeaway: feasibility is uncertain as to its meaning, make the argument both ways with a restrictive/narrow interpretation if you have a murky feasibility issue. Court ultimately rejected the “possible” notion and sided more with a “reasonable” standard, but neither is really disputed- the Dr. knew re-administration was possible, he just did not think at the time the risks were worth the benefits.

• Impeachment: Court narrowly construes what counts as impeachment. Court rules that the fact that the protocol was changed following the death in no way suggests that the Dr. did not think his judgment call was appropriate at the time. In order to impeach him, there would have to be evidence to support that he did not think it was unsafe at the time of administration, what he thinks now does nothing to impeach a prior statement.

Offers to Compromise & Negotiations (408)

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