Privileges and other policy exclusions - Compromise, payment of medical expenses, and plea negotiations

Learning Outcomes

This article examines specific Federal Rules of Evidence (FRE) that exclude relevant evidence based on public policy considerations, specifically subsequent remedial measures (FRE 407), compromise offers and negotiations (FRE 408), offers to pay medical expenses (FRE 409), and plea-related statements (FRE 410). After reading, you will understand the scope of each exclusion, the rationale behind them, and the critical exceptions, preparing you to analyze MBE questions involving these policy-based exclusions.

MBE Syllabus

For the MBE, you are required to understand the rules excluding certain relevant evidence due to overriding public policy concerns aimed at encouraging socially beneficial conduct. You should be prepared to:

  • Identify situations where evidence of subsequent remedial measures is offered and determine its admissibility under FRE 407, including exceptions.
  • Analyze the admissibility of compromise offers and statements made during settlement negotiations under FRE 408, recognizing its scope and exceptions.
  • Distinguish offers to pay medical expenses (FRE 409) from accompanying statements of fact, knowing which may be admissible.
  • Apply FRE 410 to determine the admissibility of withdrawn guilty pleas, nolo contendere pleas, offers to plead, and statements made during plea discussions against a defendant.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Plaintiff slips and falls on Defendant Store's wet floor. The next day, Defendant Store installs non-slip mats in the area. Plaintiff offers evidence of the mat installation to prove Defendant Store was negligent. Is this evidence admissible?
    1. Yes, because it shows Defendant Store recognized the danger.
    2. Yes, because it is relevant to the issue of negligence.
    3. No, because subsequent remedial measures are excluded to prove negligence.
    4. No, because the installation occurred after the plaintiff's injury.
  2. During settlement talks regarding a contract dispute, Defendant says to Plaintiff, "Okay, the goods were late, that was my fault, but I can only offer you $5,000 to settle this." Plaintiff rejects the offer and sues. At trial, Plaintiff seeks to introduce Defendant's statement "that was my fault" as an admission of liability. Is the statement admissible?
    1. Yes, because it is an admission by a party-opponent.
    2. Yes, because statements of fault made during settlement negotiations are admissible.
    3. No, because statements made during compromise negotiations are inadmissible to prove liability.
    4. No, unless the defendant was represented by counsel during the negotiations.
  3. Driver hits Pedestrian. Driver rushes over and says, "Don't worry about your medical bills, I'll pay for everything. I was checking a text message and didn't see you." Pedestrian sues Driver. Is Driver's entire statement admissible to prove Driver's liability?
    1. Yes, the entire statement is admissible as an admission.
    2. No, the entire statement is inadmissible because it contains an offer to pay medical expenses.
    3. The offer to pay medical expenses is inadmissible, but the statement "I was checking a text message..." is admissible.
    4. The offer to pay medical expenses is admissible to show generosity, but the statement about texting is inadmissible hearsay.
  4. Defendant pleads guilty to robbery but withdraws the plea before sentencing. At Defendant's subsequent trial for the same robbery, the prosecution seeks to introduce evidence of the withdrawn guilty plea. Is this evidence admissible?
    1. Yes, because it is relevant to show consciousness of guilt.
    2. Yes, if the defendant voluntarily entered the plea.
    3. No, because withdrawn guilty pleas are generally inadmissible against the defendant.
    4. No, unless the defendant testifies inconsistently with the plea.

Introduction

The Federal Rules of Evidence generally favor the admission of relevant evidence. However, certain rules exclude otherwise relevant evidence because its admission might deter socially desirable conduct. This article focuses on four key policy-based exclusions: subsequent remedial measures (FRE 407), offers to compromise and related statements (FRE 408), offers to pay medical expenses (FRE 409), and plea bargaining evidence (FRE 410). Understanding these rules and their exceptions is essential for the MBE.

Subsequent Remedial Measures (FRE 407)

FRE 407 provides that when measures are taken that would have made an earlier injury or harm less likely to occur, evidence of these subsequent measures is not admissible to prove:

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

The policy behind this rule is to encourage people to take safety precautions after an accident without fear that their actions will be used against them as proof of prior fault.

Key Term: Subsequent Remedial Measure An action taken after an injury or harm has occurred that, if taken previously, would have made the injury or harm less likely to happen (e.g., repairing a broken step after a fall).

Exceptions to FRE 407 Exclusion

Evidence of subsequent remedial measures may be admitted for another purpose, such as:

  • Impeachment: To contradict a witness's testimony (e.g., if a defendant testifies "We couldn't have made it safer," evidence of a later safety measure could impeach this).
  • Proving Ownership or Control: If ownership or control of the property or instrumentality involved is disputed, evidence of subsequent repairs by the defendant may be admitted to show they owned or controlled it.
  • Proving Feasibility of Precautionary Measures: If the defendant disputes the feasibility (i.e., possibility or practicality) of taking certain precautions, evidence that they later took those precautions is admissible to show feasibility.

Worked Example 1.1

Plaintiff was injured when using a lawnmower manufactured by Defendant Corp. Plaintiff sues, alleging a design defect made the mower unsafe. Defendant Corp.'s engineering expert testifies, "At the time of manufacture, it was technologically impossible to design a safer blade guard for this type of mower." Plaintiff seeks to introduce evidence that one year after Plaintiff's accident, Defendant Corp. redesigned the mower with a new, much safer blade guard. Is this evidence admissible?

Answer: Yes, likely. While evidence of subsequent remedial measures is generally inadmissible under FRE 407 to prove a product defect or negligence, it can be admitted for other purposes, such as proving the feasibility of precautionary measures if disputed. Here, the defense expert's testimony ("technologically impossible") directly disputes the feasibility of a safer design at the time of manufacture. Therefore, evidence of the later redesign is admissible to rebut the feasibility claim.

Compromise Offers and Negotiations (FRE 408)

FRE 408 promotes the public policy of encouraging settlements. It excludes evidence of:

  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 statements made during compromise negotiations about the claim.

This evidence is not admissible either:

  • To prove or disprove the validity or amount of a disputed claim; OR
  • To impeach by a prior inconsistent statement or a contradiction.

The claim must be disputed as to either validity or amount for the rule to apply. If a party admits liability and the amount owed, and simply offers to pay less, Rule 408 does not necessarily bar admission of the admission of liability (though the offer itself might still be excluded).

Key Term: Compromise Offer An offer to settle a disputed claim for valuable consideration. This includes the offer itself and statements made during negotiations.

Exceptions to FRE 408 Exclusion

Evidence related to compromise offers or negotiations may be admitted for another purpose, such as:

  • Proving a witness's bias or prejudice (e.g., showing a witness settled favorably with one party).
  • Negating a contention of undue delay.
  • Proving an effort to obstruct a criminal investigation or prosecution.

Offers to Pay Medical and Similar Expenses (FRE 409)

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

The policy is to encourage humanitarian acts without fear of legal repercussions.

Key Term: Offer to Pay Medical Expenses An offer or actual payment of costs related to medical, hospital, or similar care resulting from an injury.

Important Distinction: Admissibility of Accompanying Statements

Unlike Rule 408 (Compromise Offers), Rule 409 does not exclude conduct or statements that accompany the offer to pay medical expenses.

Worked Example 1.2

After a car accident, Driver says to Biker, "I'm so sorry, I totally ran that stop sign. Let me pay for your ambulance ride and ER visit." Biker sues Driver. Can Biker introduce Driver's entire statement?

Answer: No, not the entire statement. The offer to pay for the ambulance and ER visit is inadmissible under FRE 409 to prove liability. However, the admission of fault ("I totally ran that stop sign") that accompanied the offer is admissible. Rule 409 only excludes the offer/payment itself, not surrounding statements.

Pleas, Plea Discussions, and Related Statements (FRE 410)

FRE 410 broadly excludes evidence related to pleas and plea discussions in both civil and criminal cases against the defendant who made the plea or participated in the discussions. Specifically, the following are inadmissible:

  1. A guilty plea that was later withdrawn.
  2. A nolo contendere (no contest) plea.
  3. Any statement made during proceedings under Rule 11 of the Federal Rules of Criminal Procedure (or comparable state procedure) regarding either of the above pleas.
  4. Any statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or resulted in a later-withdrawn guilty plea.

The primary policy is to encourage candid plea bargaining.

Key Term: Plea Bargaining Statements Statements made by a defendant during plea discussions with a prosecutor, as well as withdrawn guilty pleas and nolo contendere pleas.

Exceptions to FRE 410 Exclusion

A statement described above may be admitted in two specific circumstances:

  1. Completeness: In any proceeding where another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together.
  2. Perjury Prosecution: In a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Exam Warning

Rule 410 excludes this evidence only when offered against the defendant who made the plea or statements. It does not prevent the defendant from introducing such evidence (though strategic reasons usually counsel against it). Also, note that statements made to police before plea discussions with a prosecutor begin are generally not protected by FRE 410.

Key Point Checklist

This article has covered the following key knowledge points:

  • FRE 407 excludes evidence of subsequent remedial measures offered to prove negligence, culpable conduct, product defect, or need for warning, but allows it for other purposes like proving ownership, control, or feasibility if disputed.
  • FRE 408 excludes compromise offers and statements made during negotiations when offered to prove/disprove the validity or amount of a disputed claim or for impeachment by prior inconsistent statement. Exceptions exist for other purposes like proving bias.
  • FRE 409 excludes offers to pay medical expenses offered to prove liability, but importantly, does not exclude accompanying statements of fact or admissions of fault.
  • FRE 410 excludes withdrawn guilty pleas, nolo contendere pleas, and statements made during plea discussions with a prosecutor when offered against the defendant, subject to exceptions for completeness and perjury prosecutions.

Key Terms and Concepts

  • Subsequent Remedial Measure
  • Compromise Offer
  • Offer to Pay Medical Expenses
  • Plea Bargaining Statements
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