Additional Limits on Relevance

Question 1

Other Forbidden Inferences

Answer 1

• Rule 407 - subsequent remedial measures
• Rule 408 - compromise offers and negotiations
• Rule 409 - offers to pay medical and similar expenses
• Rule 410 - pleas, plea discussions, and related statements
• Rule 411 - liability insurance

Question 2

Rule 407

Answer 2

Subsequent Remedial Measures

• you can’t use subsequent remedial measures to prove the defendant was at fault
• you CAN use it for other purposes - prove ownership or control over something, prove there were feasible preventative/remedial measures available, BUT you can only do this if the defendant doesn’t dispute it - if the defendant stipulates to it, you can’t use it

Question 3

Rule 408

Answer 3

Compromise Offers and Negotiations

• covers actual settlements in addition to offers
• can’t use to prove validity of claim or $ amount of the claim, but can use for other purposes, such as a witness’s bias or prejudice
• can’t use for impeachment or substantively
• applies in both civil and criminal cases, but the settlements at issue are only civil ones
• doesn’t prohibit the use of docs that happen to be mentioned in settlement negotiations, but does exclude what you talked about
• note that you also can’t lie to regulators in negotiations then expect it won’t be used in some kind of criminal case for lying to regulators

Question 4

Rule 409

Answer 4

Offers to Pay Medical Bills and Similar Expenses
- not allowed to prove liability, but can use for other purposes
- only covers the payments/offers, not statements made in the context

Question 5

Rule 410

Answer 5

Please, Plea Discussions, and Related Statements

• applies to both civil and criminal, but the talks take place in criminal context
• doesn’t cover all pleas - guilty pleas get used all the time, you just can’t use if later withdrawn
• can’t use evidence of a nolo contendere plea to prove guilt
• covers statements made during plea discussions with attorney for prosecution if didn’t result in guilty plea or guilty plea later withdrawn

Question 6

U.S. v. Mezzanatto

Answer 6

• waiver of Rule 410 to impeach defendant
• agreement between defendant and prosecution to waive part of Rule 410 was allowed as long as def entered into it knowingly and voluntarily
• parties can agree otherwise unadmissible evidence can be admitted for impeachment if you take the stand and say stuff inconsistent with what you said under oath during plea discussions

Question 7

U.S. v. Mergen

Answer 7

• waiver of 410 for government’s case in chief in a district court
• essentially, dissent in SCOTUS had said if you allow this for impeachment, it will come in for case in chief, and that is what has wound up happening

Question 8

Rule 411

Answer 8

• can’t offer evidence of defendant’s insurance or lack thereof to prove liability
• may admit for another purpose (ex: agency, ownership, or control; bias, prejudice)

Question 9

Trial Mechanics - Rules About Witnesses

Answer 9

• 601 - competency
• 602 - personal knowledge
• 603 - oath or affirmation to testify truthfully
• 615 “invoking the Rule” (excluding witnesses from courtroom)

Question 10

Rule 607

Answer 10

Impeachment
- any party may attack the witness’s credibility, including the party that called the witness

Question 11

Intrinsic Impeachment vs. Extrinsic Impeachment

Answer 11

• intrinsic = asking a witness on cross-examination
• extrinsic = introducing a document as an exhibit or calling a different witness

Question 12

611(a) and (b)

Answer 12

• judge has discretion to let you go beyond the ordinary scope of cross if it makes sense (if you have a couple of miscellaneous q’s and it would be a substantial burden on witness, witness not in good health, etc.) but if you have a whole big category of stuff to cover, better to do it on your own direct