Public policy doctrines for the exclusion of relevant evidence

Public policy doctrines for the exclusion of relevant evidence

Public policy doctrines for the exclusion of relevant evidence, in the law of evidence in the United States, encompass several types of evidence that would be relevant to prove facts at issue in a legal proceeding, but which are nonetheless excluded because of public policy concerns. There are five major areas of exclusion: subsequent remedial measures, settlement offers, offers to pay medical expenses, offers to plead guilty to a crime, and ownership of liability insurance. These are reflected in the Federal Rules of Evidence ("FRE"). The exclusionary rule, under which evidence gathered by the police from an illegal search is excluded, is of similar operation but is usually considered separately.


Subsequent remedial measures

A subsequent remedial measure is an improvement or repair taken following an injury caused by the prior condition of the thing repaired. FRE 407 prohibits the admission of evidence of subsequent remedial measures when used to show negligence or defect in a product.

Evidence of post-injury repairs is generally inadmissible for two reasons. First, courts do not want to discourage property owners from engaging in such repairs. Second, despite a jury's tendency to think otherwise, evidence of subsequent repairs has little to do with whether the product in question was defective at a previous time.

Evidence of subsequent remedial measures, however, is admissible in some circumstances, such as:

  1. To show ownership or control of the thing repaired
  2. To impeach a claim that no such improvements or repairs were possible before the injury occurred

For example, suppose a plaintiff were to slip and fall on the steps leading into a building, and that the defendant then decided to take a remedial measure and coat the steps with a less slippery material. The plaintiff would not be able to introduce evidence of this remedial measure in order to prove that the condition was hazardous at the time of the slip and fall. However, if the defendant claims that he does not even own the building at which the plaintiff fell, then the plaintiff may introduce evidence that the defendant improved the steps to show that they were indeed the defendant's property. Similarly, if the defendant claims that there was nothing that could have been done to make the steps safer at the time of plaintiff's slip and fall, the plaintiff may show the remedial measure taken in order to prove that the defendant is lying about the possibility of making the steps safer.

Settlement offers

Offers to settle a claim, and related statements made during a settlement conference, are generally inadmissible under FRE 408. The primary public policy motivation is to encourage litigants to settle their disputes. This rule also recognizes that parties may make settlement offers even where they believe they have no actual liability, in order to avoid the expense of litigation. One recently enacted exception to this rule permits the admission of statements made during settlement discussions between a private party and a regulatory body, when those statements are offered as evidence in a criminal case.

The inadmissibility of settlement claims only prohibits the admission of statements, not the admission of facts. Thus, if a party to a settlement conference mentions that they possess a certain document relevant to the proceedings, the other party may seek to discover that document through legal processes, despite it having first been mentioned in the settlement conference.

Offers to pay medical expenses

An offer to pay medical expenses is an offer of this nature made by a party who might potentially be liable for an injury to another. FRE 409 states:

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

Evidence of an offer to pay medical expenses is inadmissible for the public policy rationale that courts do not want to discourage parties responsible for injuring others from paying for the treatment of those injuries.

Offers to plead guilty to a crime

Offers to plead guilty, or to plead nolo contendere to a crime are generally inadmissible under FRE 410, as are actual guilty pleas which are later withdrawn, and all statements made during plea negotiations. The public policy motivation is to encourage criminal defendants to plead guilty to their crimes.

The inadmissibility of such matters may, however be waived by the criminal defendant. It is therefore a common practice for prosecutors drawing up plea deals to include terms requiring the defendant to agree that statements made in the course of plea negotiations may be used to impeach the testimony of that defendant, if they later change their story.

Such a statement is also admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

Ownership of liability insurance

Evidence of a party's ownership of liability insurance is generally inadmissible because the courts do not want to discourage parties from carrying such insurance. FRE 411 states:

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

The rule spells out two exceptions to the rule of inadmissibility:

  1. If the owner of the insurance policy disputes ownership or control of the property, evidence of liability insurance can be introduced to show that it is likely that the owner of the policy probably does own or control the property.
  2. If a witness has an interest in the policy that gives the witness a motive or bias with respect to specific testimony, the existence of the policy can be introduced to show this motive or bias. Federal rules of civil procedure rule 26 was amended in 1993 to require that any insurance policy that may pay or may reimburse be made available for photocopying by the opposing litigants, although the policies are not normally information given to the jury. Federal Rules of Appellate Procedure rule 46 says that an appeal can be dismissed or affirmed if counsel does not update their notice of appearance to acknowledge insurance. The Cornell University Legal Institute web site includes congressional notes.

A third exception arises where the party's mention of its own liability insurance is inextricably intertwined with another statement that is admissible. For example, if after an automobile accident, the driver of one car runs over to the other and says "don't worry, my insurance will pay to fix the damage I caused to your car", the entire statement is admissible not to show that the driver is insured, but that the driver has admitted fault.

Note on the exclusionary rule

The exclusionary rule is another rule under which relevant evidence may be excluded, based in part on public policy concerns. Under this rule, evidence gathered by the police from an illegal search is inadmissible in a criminal case. Such exclusion is intended, in part, to discourage law enforcement officials from violating the search subject's constitutional right against unreasonable search and seizure. However, it is premised as much on the right of the individual accused against such a search as it is on the larger issue of law enforcement behavior. The rule does also reflect on questions of reliability regarding some (but not all) types of evidence that are excluded thereunder. For example, an officer conducting a warrantless search may have more of an opportunity to plant evidence, and a confession coerced out of a party denied access to legal counsel may be false.

In legal education and discourse, the exclusionary rule is generally treated as a rule of criminal procedure, rather than a rule of evidence.

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