So this tractor has a flawed design, when deployed as used (backhoe with rollbar). The mom is bringing this suit against the best available deep pocket (suit for worker's comp would be against the municipality).
There's some pretty baffling lawyer-work from the defendant. They know this memo is out there, but they select it's author as their own expert witness. That's quite remarkable. Anyway, this memo warns dealers that this configuration of the tractor is hazardous.
So. In a product liability action, the memo would certainly be relevant: it's a design person writing about a danger related to the product, and warning customers. Also (and this is Article 8 stuff), it's probably reliable because it's a statement against interests by an opposing party. So this passes the Rule 401 test: it goes to the material question of whether the design is actually unreasonably dangerous.
But this is a subsequent remedial measure (subsequent to the harm in question). So the very issue on which we decided the issue was relevant is a forbidden use of this evidence under Rule 407. But this was not proffered for that purpose: the plaintiff wants to use it to demonstrate that the expert's testimony about how safe the tractor is was unreliable.
So inadmissible for one purpose doesn't mean inadmissible for all purposes: that's Rule 105. The judge should instruct as to how the jury can use this evidence. So the proponent wants to get this evidence in (Rule 401), the opponent objects (Rule 407), and the proponent responds that this fits under the exception to Rule 407, and maybe suggests that the judge mollify the opponent by limiting the use of the evidence. Or alternatively, the judge buys the argument that it fits the criteria for Rule 407, and the opponent asks for a limiting instruction.
And note that the jury will still do whatever they want with the evidence: the limiting instruction probably won't have significant practical effects. Also, note that anyone can request the limiting instruction-- the rule suggests that this can only happen "on request," but the judge might do it sua sponte.
Sometimes you might not want a limiting instruction in your favor, because it calls attention to the evidence, and validates that it has a harmful use. In any event, you don't want to argue about instructions in the jury's presence, for obvious reasons.
Impeachment is all about challenging the credibility of a witness: even if you can't argue the facts of a particular statement, you can argue the power of a prior inconsistent statement (Rule 613(b)).
This is a pretty easy case, on the merits: there's no plausible way to argue that the 5th Cir. Ct. App. got this wrong. But the amazing thing is that pretty much the only way this memo could be admitted is if the defendant uses their own expert. Colossaly clumsy lawyering, or a penny-wise-pound-foolish client.
But we still can have a Rule 403 issue: even if this evidence is admissible for this one narrow purpose, it still has strong prejudicial power. But that's OK: it's not unfair prejudice-- it's OK to point out that the defendant is trying to mislead the jury.
Also, 407 is a recognition that a lot of the time, manufacturers don't know about the defects in their products until some harm is done, and we don't want the jury to misuse the evidence (i.e., draw the inference that the manufacturer knew about the defect all along). Jurors are affected by "hindsight bias," in other words, and we don't want to feed that. Jurors tend to believe than an event was foreseeable simply because it happened.
Rule 403 is always the last stop on the admissibility of anything. It is always appropriate to balance probative value against undesirable effects.
The rules err on the side of admitting anything of probative value. The undesirable effects have to SUBSTANTIALLY outweigh probative value.
Rule 403 is a rule of general applicability.
The judge decides that the witness's drunk driving case (on which a deal was offered in exchange for testimony) was irrelevant to the homicide charge. SCOTUS agrees that this was an overbroad ruling: 6A guarantees the defendant a chance to cross-examine and reveal things like this.
But Rule 403 (not mentioned because this was a state case) allows a judge to limit even cross-examination.
It's rare for SCOTUS to take up the Federal Rules of Evidence, and the reasoning here is good too.
Johnny Old Chief lives in "Indian Country" (this is a statutorily defined term under federal law), and they've opted for federal jurisdiction on serious crimes, even if they'd ordinarily be state crimes. One tribe in WI (Menominee) has opted into federal jurisdiction.
Anyway, he's charged with three separate crimes: assault, § 924(c), and Felon in Possession (FIP). FIP is a garden variety federal case these days; the law was enacted after Bobby Kennedy and Martin Luther King were assassinated.
And so Old Chief had a prior felony (assault, with some harm). To convict him, the prosecution must show:
The prosecutor is no fool: he wants the name of the crime in there. And the federal defender is no fool either: he doesn't want the name of that crime in there because it'll prejudice the jury into thinking the defendant was more likely to commit the present crime. So he offers to concede that there was a prior felony conviction-- he's offering to take that first element of the offense off of the table.
The prosecutor says no thanks: I get to decide how I'll prove the case. A stipulation is an agreement-- it takes both parties. One party does not have to accept the other's offer to stipulate. A stipulation can rob one side of the impact that the actual evidence would have. A stipulation is nearly always drafted and signed by the parties, and then offered into evidence (i.e., reads it to the jury). Invariably this is tedious legal jargon. We don't require the parties to give up the power of their case by stipulating things away.
The name of the crime is relevant (Rule 402), contrary to Old Chief's argument. It's one step toward proving that this is in fact a felony conviction. It's got probative value. The winning argument is that the probative value is substantially outweighed by the unfair prejudice that was attached to the name of the crime.
It makes more sense to look at the evidence as a whole (the full mosaic of the evidence, including the available alternatives), in order to decide about risk of unfair prejudice, not just the single point that someone's trying to prove.
If the probative value of two pieces of evidence is equal, and one has far greater unfair prejudice, then it's am abuse of discretion to go with the more prejudicial one. And you make that decision in the context of the evidence as a whole.
Does this just invite a general battle between the parties, each to weaken the force of the opponent's evidence? A bit, maybe, but if the evidence proffered is going to incite the jury to assign guilt on an unfair basis, the principle is sound. But there's some taint of unfair prejudice in the evidence of almost any trial. And maybe instead of asking whether the unfair prejudice substantially outweighs the the probative value, the court says that the judge should just pick whatever evidence is less probative.
But no: the judge has a lot of discretion, and this is only a case where we spy an abuse of discretion. And also, it's rare for an alternative piece of evidence to have absolute zero unfair prejudice. Difficult here to sort out the hilding from the dicta.
So maybe the right way to read this case is very narrowly: on a F.I.P. case, if the defendant is willing to stipulate the issue of legal status as a felon, the judge and prosecutor pretty much have to accept the stipulation.
One factor might be the degree to which a fact at issue could bear from narrative development. Simple binary questions of fact (are you a minor, are you a felon, etc.) might lend themselves to stipulation. But a stipulation is an agreement.
Still, in practice, prosecutors in federal court write the defense a letter asking if they'll be seeking an Old Chief stipulation on F.I.P. cases.
Remember that this was a 5-4 decision. The US attorney may be OK with it now, but the court was sharply divided, and O'Connor's dissent is interesting: what's wrong with naming the crime that a person committed? Sure, it's prejudicial, but why is it unfairly prejudicial? By what right do we force parties to stipulate away the oomph of their case?
In the end, we need to be careful not to over-read this case: you can't simply insist that less prejudicial evidence be admitted in lieu of more prejudicial evidence. That would rob trials of the power of the story, and that would be a result that nobody wants.
| Rule | What it applies to | What it can't be used to prove |
|---|---|---|
| 407 | Subsequent remedial measures | Negligence or defect |
| 408 | Settlement offers | Strength or weakness of a claim |
| 409 | Payment of medical expenses | Liability |
| 410 | Criminal settlement offers | Criminal guilt or civil liabilities |
| 411 | Liability insurance (presence or absence) | Liability |
|------------|----------------|-----------------|--------> Long Ago The Harm Remediation Trial The Future!So, we've got various standards for negligence (the Hand formula, e.g., and foreseeability). So if the harm was not foreseeable, you're generally not negligent for failing to take steps to prevent it. We don't decide about negligence in hindsight-- it's about what you knew or reasonably should have known before the harm occurred. So a subsequent remedial measure doesn't necessarily tell you anything useful about negligence. And we certainly don't want to discourage people from taking remedial measures.
We want to avoid hindsight bias: if something bad happens, why didn't you do something to prevent it? The probative value of a remedial measure just isn't very strong.
Note that the list of permissible purposes is not exhaustive: there's a list of reasons for which the evidence can't be admitted, but the list of reasons for which it can be admitted might have arbitrarily many members.