Rule Excludes Exceptions (French/German Rule) Things to Remember

407 – Subsequent Subsequent remedial measures to prove: French Rule – everything permitted except Does NOT apply to prior remedial
Remedial Measures • Negligence that which is prohibited. measures (look at timeline)
• Culpable conduct Examples include:
• A defect in product or design • Impeachment
• A need for warning or instructions • Proving ownership (if disputed)
• Control (if disputed)
• Feasibility of precautions (if
disputed)
408 – Compromise Evidence is not admissible on behalf of any party to prove or French Rule – everything permitted except Must have DISPUTED claim to
Offers and disprove the validity or amount of a disputed claim or to that which is prohibited exclude statements/conduct!
Negotiations impeach by prior inconsistent statement/contradiction: • (prove a witness’s bias or prejudice;
• Offer OR acceptance of a settlement • negating a contention of undue Includes surrounding statements!
o Prohibits presenting evidence of existence delay (i.e., settlement talks took too
of such an offer, including furnishing offer long) Does NOT apply to statements made
and a promise to accept • proving an effort to obstruct a in non-settlement activities.
• Conduct or a statement made during settlement criminal prosecution • There is a distinction
negotiations about the claim between (1) offers to pay or
o EXCEPT in a criminal case where the payments and (2) statements
statement is made to a government agent made in connection with
negotiating for a payment.
409 – Offer to Pay Evidence of paying or promising/offering to pay medical, French Rule – everything permitted except Bars ONLY offers to pay for medical
Medical Expenses hospital or similar expenses resulting from an injury to prove that which is prohibited expenses – does not bar surrounding
liability. statements or conduct (unlike FRE
Exceptions: Anything other than offering to 408).
prove liability! (e.g., impeachment)
Does NOT require disputed claim
(unlike 408)
410 – Pleas, Plea In a civil or criminal case, evidence of the following is NOT German rule – evidence prohibited unless it Does NOT apply to statements made
Discussions, and admissible against a D who made the plea or participated in falls within narrow exceptions! during police interrogations!
Related Expenses plea discussions: Only 2 exceptions:
• No contest plea • Another statement made during the Does NOT cover accepted guilty pleas
• A guilty plea later withdrawn same plea negotiations or or statements made during
• Statements made during proceedings for guilty plea proceedings was introduced by D negotiations that lead to accepted
later withdrawn or no contest plea and fairness dictates that the jury guilty pleas.
• Statements made during plea discussions with should consider the statements
prosecuting attorney if discussions did not result in together – D must open the door! D can waive 410
guilty plea or resulted in later withdrawn guilty plea • In a criminal proceeding for perjury
or false statements, if D made the
statement under oath, on the record,
and with counsel present
411– Liability Evidence that a person was and was not insured against French Rule – everything permitted except
Insurance liability to prove negligence that which is prohibited
Examples include: proving witness
bias/prejudice, agency, ownership, or control
 Exceptions to Character Evidence
Rule Use Proceeding Who Must Open Form of Evidence Opponent’s Response
Door
Propensity evidence: Criminal Def offer evidence of CRIMINAL ONLY DEF! Direct: Def offer Pros can cross-exam Def’s witness by asking
Def in criminal case Def’s pertinent character trait (good reputation and opinion relevant specific instances of Def’s conduct
trait) to rebut the charge of bad witness ONLY
404(a)(2)(A) character implicit in the charge Pros can introduce its OWN reputation or
Cross: specific acts opinion witness to show Def’s bad character
**cannot inquire into specific instances of
own witness!
Propensity evidence: Criminal Def offer evidence of V’s CRIMINAL ONLY DEF! Direct: Def offer Pros can cross-examine Def’s witness about
character of victim in pertinent character trait reputation and opinion relevant specific instances of V’s conduct
criminal case witness ONLY
***CAUTION subject to Rape
Pros can introduce its OWN reputation and
404(a)(2)(B) Shield! Cross: specific acts
opinion witness to rebut SAME trait of V.
**cannot inquire into specific instances of
own witness!

Pros can offer evidence of Def’s SAME trait

Propensity V’s peaceful pros to offer evidence that the V CRIMINAL ONLY DEF MUST open Direct: Pros offer Def can cross pros witness by asking about
character in homicide had a good character for being – HOMICIDE door and say V is reputation and opinion V’s bad acts relating to violent character
case peaceful in a homicide case where first aggressor. If witness ONLY
Def accused V of being the first Def does this, Def can introduce OWN reputation and
404(a)(2)(C) aggressor prosecutor can Cross: specific acts opinion witness to show V’s bad character for
bring in evidence violence! **cannot inquire into specific
instances of own witness!

Crimes/Wrongs/Other By either party evidence of other Criminal AND Civil Either party Specific acts Opponent can introduce its own witnesses
Acts acts may be admissible to show a who will testify as to other specific acts in
factual issue in the case. More common in rebuttal concerning the factual issue in
404(b)(2) criminal question.
Non-exhaustive list of examples: **in order to get
motive, knowledge, notice, this in, must prove
opportunity, intent, other act under
Note: **other act need preparation/plan, identity, MO, 104(b)
not be prior and can be absence of mistake/lack of
subsequent accident, doctrine of chances,
someone other than D committed
crime
When character IS an By either party in a criminal or Criminal AND civil Either party Direct: Reputation, Opponent can cross reputation and opinion
essential element civil case to offer evidence when opinion, AND specific witnesses by asking about specific acts
substantive law places a party's Example: acts
405(b) character at issue (can be charge, libel/slander, pros Opponent can introduce its own reputation
claim, or defense) for entrapment and opinion witnesses
defense