Part three, relevance. Section two, public policy based exclusions.

public policy based exclusions

Remember the basic rule that all relevant evidence is admissible. As you just saw, however, there are several pragmatic reasons that courts can keep out even relevant evidence, falling into the categories of unfair prejudice, confusion, and waste of time.

The federal rules of evidence also provide several public policy based exceptions that courts use to keep out evidence. These exceptions encompass several types of evidence that would be relevant to prove facts at issue, but which are nonetheless excluded because of pragmatic public policy concerns, including the desire for our society to encourage beneficial out-of-court conduct.

Think about this section as the incentives rules of evidence. Yes, it might be relevant and yes, it might be probative, but we want to incentivize people and potential litigants to do the right thing, so we keep the evidence out in order to maintain those incentives. There are five categories on this list and the first is liability insurance.

liability insurance

Let's take a look at an example. Evidence that a person has or doesn't have liability insurance is inadmissible for the purpose of proving fault or the absence of fault. This is because courts don't want juries to decide either against imposing damages where there's no coverage or encourage excessive damages where the award is to be paid by an insurance carrier. We also want to incentivize people to get insured without drawing the conclusion that they are somehow irresponsible.

Evidence that a person was or was not insured against liability, therefore, is not admissible on the issue of whether the person acted negligently or otherwise wrongfully.

exceptions

when offered for another purpose

This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, however, such as proof of agency, ownership, or control, or bias, or prejudice of a witness.

For example, a taxi was involved in an accident and the plaintiff is arguing that the defendant cab company owned the taxi and is therefore liable for the damages. The defendant may argue that they don't own the taxi, the driver does. Because there's a dispute over who owns the taxi, the judge may admit evidence that the company held insurance for the vehicle and making it less believable that they did not in fact own it.

limiting instructions

If a judge does allow the evidence, she will usually give a limiting instruction, telling the jury that the information is to be used only for one purpose. For example here, to show ownership, but not for another purpose, here to prove that the cab company is at fault.

when offered to impeach a witness

Another exception to this rule is that evidence of insurance can be used for impeaching a witness. An example here would be where a party says they had no relationship with another person, but if that person turns up on her insurance plan, the presence of that insurance can be used to impeach.

subsequent remedial measures

Another example of a public policy exception to relevant evidence is regarding subsequent remedial measures. A subsequent remedial measure is a repair, a design change, or a policy change taken after an accident that might have prevented the accident, had they been implemented earlier. For example, Ford makes a modification to its SUVs that makes it less likely to roll over on the highway. That evidence of a change in its product design is not admissible to show that the previous design was negligent or defective. There's a good reason for this. We want companies to make changes to their products to make their products safer.

There are exceptions to this rule, however, as well.

exceptions

proving ownership or control

The first two are exactly the same as the insurance example: proving ownership or control. You can't very well claim you didn't own the product if you made changes to it to make it safer.

proving feasibility of safer condition

The third exception is to prove the feasibility of a safer condition. If, for example, a company defends itself in a product liability lawsuit saying they made the product as safe as it could possibly be, the existence of subsequent remedial measures making it safer could show that a safer model was technologically possible. Remember, though, that the remedial measures are not admissible to prove that the design was unsafe in the first place, only that a safer model was possible.

defendant must create dispute

Because the jury may still misinterpret it even with a limiting instruction, it must be the defendant who first puts the issue into dispute. For example, by saying they didn't own or control the item or product, or that no safer design was possible.

subsequent remedial measure by third-parties

Subsequent remedial measures by third parties are admissible, such as another user of the product who tried to make a dangerous feature, less dangerous.

evidence of settlements

The next public policy exception to relevant evidence is evidence of settlements. There are two different categories of settlements, civil and criminal, each of which has its own rules.

civil cases

For civil cases, if there's a disputed claim, evidence of the following is inadmissible to prove liability: settlements, offer to settle, and settlements of fact made in settlement discussions. There are a few requirements here that must be met in order to exclude this evidence.

there must be a claim

First, there must be a claim, meaning someone has to have made some demand and there must be a dispute as to the validity or amount. If the defendant admits to full liability, it's admissible.

Let's look at an example. Abe and Joseph get into a car accident. If Abe runs over saying, "I ran that light, but I'll give you $5,000 if we can settle this right now." This statement does not fall into the exception and would be admissible. Why? Because there was no actual claim. Joseph didn't demand Abe pay him any money and because there was no dispute as to the amount, it wasn't an actual negotiation.

If on the other hand, Abe and Joseph walk over to the side of the road and Joseph says, " Abe, you need to pay me $8,000 for what you did to my car," and Abe says, "I'll give you five if we can settle this now." This is a real settlement negotiation and would be inadmissible. This is because there's an actual claim and because the amount is in dispute.

Furthermore, if Joseph says, " Abe, you need to pay me $8,000 for what you did to my car," and Abe says, " I know, I wasn't even looking when I went through that intersection. I'll give you $5,000 if we can settle this right now." Abe's statement that he wasn't looking is also not admissible later in court. The reason for that is simple. We want to encourage settlements and frank settlement discussions. The court would rather people try to work it out on their own than come into court.

criminal cases

In a criminal case, there are different rules about settlements. In a pending criminal case, or subsequent civil case after a criminal case, evidence of an offer to plead guilty is not admissible. Neither is a plea of nolo contendere, which is a no contest plea, or a withdrawn guilty plea.

Like the civil exception, statements of facts made during any of these settlement negotiations are also not admissible. The reasons for this are the same as in a civil case. We want to encourage settlements and frank discussions during those settlements. Where there's been a plea of guilty that is not withdrawn, that plea is admissible in subsequent litigation based on the same facts. Say, for example, a civil case based on the same facts that were in the criminal case.

offers to pay medical expenses

The final category of exceptions to the relevant evidence rule are payments or offers to pay medical expenses. These are not admissible to prove liability because we don't want to disincentivize people from being charitable to each other. If Abe says to Joseph, " It looks like you've got a crick in your neck. I'll pay for you to get that checked out." Even if they don't come to an agreement on a settlement, Abe's offer is not admissible to prove that Abe actually caused the accident.

payment offers are inadmissible, but accompanying admissions of fact are not

Abe had better be careful, however, admissions of fact accompanying an offer to pay medical expenses are admissible. If Abe says, " I wasn't even looking when I went through that intersection, I'll pay for you to get that neck checked out." That accompanying statement is admissible even if the actual offer isn't. This is tricky, so keep this straight. Admissions of fact made during settlement negotiations are not admissible, but admissions of fact made during offers to pay medical expenses are admissible.

review

Let's take a multiple-choice review. Which of the following statements is the most likely to be admitted in court? A, we later updated the tractor cage to provide more protection to drivers in the event of a roll-over. B, Ned bought the best insurance package out there, up to $10 million in liability. C, it's all my fault. I'll pay for everything. D, Ned tried to plead guilty to manslaughter, but the prosecutor wanted murder. The answer is C. Where a person admits to full liability, the evidence will be admitted.

The tractor update is not likely to be admitted except to show ownership or control. The insurance policy is not likely to be admitted because it may prejudice the jury. And guilty pleas that are withdrawn are also not admissible in subsequent litigation based on the same facts.