Rules that Exclude Evidence Based on Subject Matter (FRE 407-409) Flashcards
FRE 407: When is evidence of subsequent remedial measures barred?
When MEASURES are taken that would have made an earlier injury or harm LESS LIKELY TO OCCUR, evidence of the SUBSEQUENT measures is not admissible to prove:
(1) Negligence,
(2) Culpable conduct,
(3) A defect in a product or its design, OR
(4) A need for a warning or instruction.
FRE 407: When is evidence of subsequent remedial measures admissible?
The court may admit evidence of subsequent remedial measures FOR ANOTHER PURPOSE, SUCH AS:
(1) Impeachment, or
(2) IF DISPUTED, proving OWNERSHIP, CONTROL, or the FEASIBILITY of precautionary measures.
NOTE: “subsequent remedial measures” ARE admissible if they are offered to prove any fact in consequence other than (1) Negligence, (2) Culpable conduct,
(3) A defect in a product or its design, OR (4) A need for a warning or instruction.
FRE 408(a)(1) & (2): When is evidence of compromise offers or negotiations NOT admissible? (BROAD / EXPANDED SCOPE PERSPECTIVE)
(a) Evidence of compromise offers or negotiations is not admissible–ON BEHALF OF ANY PARTY–either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) FURNISHING, PROMISING, or OFFERING–or ACCEPTING, PROMISING TO ACCEPT, or OFFERING TO ACCEPT–a valuable consideration in compromising or attempting to compromise the claim, AND
(2) conduct or a statement made DURING compromise negotiations about the claim.
FRE 408(a)(2): When is evidence of compromise offers and negotiations admissible in a criminal case?
FRE 408(a)(2) states evidence of conduct or a statement made during compromise negotiations about the claim is not admissible–EXCEPT WHEN offered in a CRIMINAL CASE, AND when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
FRE 408(b): When is evidence of compromise offers and negotiations admissible under the Federal Rules? (EXCEPTION to FRE 408)
The court MAY ADMIT evidence from compromise or settlement negotiations for ANOTHER PURPOSE, such as: (1) proving a witness’s bias or prejudice; (2) negating a contention of undue delay, OR (3) proving an effort to obstruct a CRIMINAL INVESTIGATION OR PROSECUTION. This list of other purposes is NOT exclusive–parties may introduce evidence from compromise negotiations for ANY other purpose other than the explicitly prohibited ones outlined in FRE 408(a).
FRE 409: When is admission of evidence of offers to pay or furnish medical expenses barred by the federal rules?
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses–i.e., medical treatment and physical rehab–resulting from an injury is NOT admissible when offered to PROVE LIABILITY for that injury.
FRE 409: When is evidence of offers to pay or furnish medical or similar expenses potentially admissible?
If a party offers evidence of medical or similar expenses to prove ANY OTHER fact of consequence besides liability for the injury in question, the evidence may be admissible subject to FRE 403’s balancing test.
