Specialized Article IV Rules

Question 1

Article IV: Specialized Relevance Rules

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: Purposes

Answer 2

+ Encourages defendants to take remedial measures without worrying about the effects on pending litigation.
+ Protects defendants from unfair prejudice (b/c jury may give too much weight to evidence of subsequent remedial measure in assessing fault).

Question 3

A “measure” (for 407 purposes) is…

Answer 3

anything that 1. would have made an earlier injury or harm less likely to occur, and 2. is subsequent to an earlier injury or harm.

E.g.’s:

Question 4

“Measures” are only excluded under 407 if…

Answer 4

… offered to prove liability, e.g.

• Negligence;
• Culpable conduct;
• A defect in a product or its design; or
• A need for a warning or instruction.

Question 5

Examples of 407 Measures

Answer 5

1. Firing an employee
2. Recalling a product
3. Changing a policy
4. Providing updated warning label
5. Re-training employees
6. Issuing a recall

Question 6

Rule 407 bars evidence of remedial measures that occurred after…

Answer 6

… the injury occurred.

Question 7

Evidence is excluded under 407 when…

Answer 7

… offered by and against a party to prove:

• negligence
• culpable conduct
• a defect in a product or its design, or
• a need for a warning or instruction.

Question 8

Not excluded when…

Answer 8

The measure was not taken by a party OR is offered to prove some other, relevant, controverted purpose, e.g.

• Impeachment
• Proving Ownership
• Proving Control
• Proving Feasibility
• These things must be in dispute (controverted), though.

Question 9

Rule 407: Subsequent Remedial Measures - Exceptions

Answer 9

1. Other purposes than the culpability purposes listed in the rule;
2. Third-Party Repairs (when the Defendant doesn’t make the repairs).

Question 10

Rule 408 - Purposes

Answer 10

To further the social policy favoring settlements, i.e. to ensure that parties are not inhibited from making offers or statements during the settlement negotiation process.

Protects parties from unfair prejudice (b/c jury may give too much weight to attempts at settlement or to statements made during the process (which may or may not be true).

Question 11

What does Rule 408 cover?

Answer 11

Offers and acceptances made by parties;
AND
All conduct or statements made during compromise negotiations.

Question 12

Evidence is excluded under Rule 408 when:

Answer 12

Offered for one of three purposes:

1. to prove the validity or amount of a disputed claim;
2. to disprove that validity or amount;
3. To impeach a witness’s testimony through a prior inconsistent statement or contradiction.

Question 13

Evidence is NOT excluded under Rule 408 when:

Answer 13

1. The dispute has not matured into a “claim.”
2. The parties do not dispute some aspect of the claim.
3. The statements or conduct do not occur during compromise negotiations or while compromising/attempting to compromise the claim.
4. The evidence is offered for any other purpose, e.g. proving bias/prejudice, negating contention of undue delay, proving obstruction of criminal investigation.

Question 14

When does a “claim” for purposes of 408 exist?

Answer 14

1. Complaint has been filed
   OR
2. Party has hired an atty and threatened to sue.

Question 15

Factors which indicate a “compromise negotiation”

Answer 15

Factors:

• Was the statement unilateral?
• Was the statement made during formal negotiations?
• Was a concrete offer made?
• Were attorneys involved?

Question 16

Some permissible purposes to admit evidence under 408

Answer 16

1. Bias of a witness or prejudice
2. Negating a contention of undue delay
3. Proving an effort to obstruct a criminal investigation
4. Others

Question 17

Under 408, can a prosecutor introduce evidence related to a criminal defendant’s civil settlement to show guilt?

Answer 17

No.

Question 18

Criminal Case Exception to 408 Exclusion

Answer 18

+ Statements made during negotiations with a public office exercising regulatory, investigative, or enforcement authority;

- Admissible in any subsequent criminal trial;
- Both prosecutor and defendant can invoke;
- But most likely to benefit prosecutor.

Question 19

Rule 409 - Purposes

Answer 19

We want to encourage people to offer to pay each other’s medical expenses.

Don’t want to chill any potential offers by allowing such an offer to prejudice the offeror at trial.

Protects parties from unfair prejudice (b/c jury may believe that payment of expenses is an admission of liability).

Question 20

What Does 409 Cover?

Answer 20

+ Furnishing, promising, or offering to pay
+ Medical, hospital, or similar expenses.

• No “claim” necessary
• No “compromise” necessary
• Rule only covers the offer to pay or the furnishing of medical expenses, not any other statements that were made contemporaneously with the offer.

Question 21

Evidence is excluded under 409 when…

Answer 21

… offered to prove liability for the injury (rather than other purposes, i.e. that the injury occurred).

Question 22

Rule 410 - Purposes

Answer 22

+ Encourage plea bargaining;
+ Promotes free and open plea discussions;
+ Protects criminal defendants from unfair prejudice if jury hears the evidence;
+ Discourages prosecutors from taking advantage of defendants (levels the playing field)

Question 23

What does 410 cover?

Answer 23

1. Guilty plea that was later withdrawn;
2. Nolo contendre plea;
3. Statement made during a proceeding on either of those pleas under F. R. Crim. P. 11 or a comparable state procedure; or
4. Statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

Question 24

What does 410 NOT cover?

Answer 24

The court may admit a statement describing [410(3.) Statement made [on a guilty plea that was withdrawn or a nolo contendre plea; or 410 (4.) Statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea]:

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
(2) in a criminal proceeding for perjury or false statement, if
- the defendant made the statement under oath,
- on the record, and
- with counsel prseent.

Question 25

Evidence is excluded under 410 when...

Answer 25

1. introduced against the defendant who participated in the plea bargaining process; 2. Used for any purpose against the defndant even when offered to impeach him; - Bars admission in both civil and criminal trials. - Bars out-of-court bargaining process and any in-court discussins or acceptance of the plea. 3. Only bars evidence when the plea bargaining process fails.

Question 26

Evidence is NOT excluded under 410 when...

Answer 26

1. Defendant is not a party and the statements are not offered against him (e.g. D testifies as witness) 2. Defendant introduces evidence from the plea bargaining process him/herself 3. Re: Final (not withdrawn) guilty pleas. - Doesn't exclude statements made during plea discussions which do result in a guilty plea. See (a)(4)

Question 27

Remember the exceptions to 410

Answer 27

+ If D opens the door by admitting statements, another party may introduce additional statements from the same session when fairness requires. + Perjury or false statements prosecution against the D if the statement was made under oath, on the record, with counsel present

Question 28

When does "plea bargaining" occur, for the purposes of 410?

Answer 28

Two-Part Test: 1. D had an actual subjective expectation of negotiating a plea 2. The expectation was reasonable given the totality of the objective circumstances [i.e. a DEA agent can't negotiate a plea].

Question 29

Factors suggesting plea negotiation

Answer 29

1. Involvement of Prosecutor 2. Involvement of Defense Attorney 3. Chargest already filed 4. Specific terms discussed 5. Government expressed interest in D's offer 6. Absence of caveat statements.

Question 30

Waiver

Answer 30

1. Most U.S. Attys require a waiver of 410 bfore discussing plea 2. Allows government to enforce D's promises to cooperate. 3. But strips D of protections of 410. 4. Cynical Judicial/Govt View: If there's no waiver, it's not a plea bargaining session.

Question 31

Rule 411 - Purpose

Answer 31

Encourages individuals and organizations to obtain liability insurance.

Question 32

What does 411 cover?

Answer 32

1. Evidence of liability insurance. - Liability insurance: e.g. + Car insurance; + Medical malpractice ins., 2. Some Courts: Indemnity agreements 3. Rule covers "persons" - Organizations likely covered, as well.

Question 33

What does 411 NOT cover?

Answer 33

Non-liability types of insurance, such as health insurance and life insurance.

Question 34

Evidence is excluded under 411 when...

Answer 34

... offered to prove fault - that is, offered "to prove whether the person acted negligently or otherwise wrongfully."