Intro to the Federal Rules of Evidence - 14

2. Offer to compromise a claim which was disputed as to the validity or amount (FRE 408)

a. Inadmissibility

i) Inadmissible
To show that liability for or invalidity of a claim, or its amount.

ii) Admissible
To prove bias, negate a contention of undue delay, etc.

iii) Scope
Evidence of conducts and statements made during the settlement negotiation. Unlike the exclusion of medical expenses (FRE 409), the severance rule does not apply.

b. Rationale

i) To promote the public policy favoring the compromise and settlement of dispute
ii) Low probative value

c. Requirement of a dispute as to validity or amount
There must be some indication, express or implied, that a party is going to make some kind of claim. Thus, if a party admits liability and the amount of liability but offers to settle (rather than litigate) for a lesser amount, every statement made in connection with that offer is admissible.

Intro to the Federal Rules of Evidence - 13

E. EXCLUSION RULES FOR PUBLIC POLICY REASONS (FRE 407-411)

1. Subsequent remedial measures (FRE 407)

a. Inadmissibility

i) Inadmissible
To prove negligence or culpable conduct, including strict liability

ii) Admissible
To prove a) ownership, b) control, c)feasibility of precautionary measures , or to d)impeach a witness.

b. Rationale

i) To encourage people to take safety measures.
ii) Low probative value: diverse reasons possible.

c. Timing of Repair
The repair or remedial must take effect after the accident or incident being litigate.

d. Required remedial measures by governmental regulations
The policy of encouraging such measures is not implicated. Thus, Rule 407 does not apply. But Rule 401 or 403 can be applied.(relevance)

e. Examples
Subsequent repairs, the installation of safety devices, changes in company rules, discharge of employees, disciplinary action against an employee, changes in drug warnings, modifications in product design.

Intro to the Federal Rules of Evidence - 12

9. Habit/ Routine Practice Evidence (FRE 406)

a. Relevancy
An agreement is general that habit evidence is highly persuasive as proof of conduct on a particular occasion. (ACN)

b. Habit v. character evidence

i) Habit
One’s regular response to a repeated specific situation

ii) Character
A generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance, or peacefulness.

Habit evidence is admissible under FRE 406, while character evidence is generally inadmissible under FRE 404.The difference in treatment accorded habit and character evidence is based on the greater probative value of habit evidence.

c. Defining habit evidence

i) specificity
ii) repetition
iii) duration
iv) the semi-automatic nature of the conduct
While adequacy of sampling and uniformity of response are key factors, precise standards for measuring their sufficiency for evidence purposes cannot be formulated (ACN).

d. Routine Business Practices
The phrase “routine practice of an organization” refers to the habit of an organization, commonly known as business practice, usage, or custom.

i) Admissible to show that a particular event occurred in conformity with the habit
For example, evidence of a regular mailing procedure would be relevant as evidence to show that a particular letter left on the table was duly mailed.

ii) Inadmissible to establish standard of care
FRE 406 does not govern the use of routine-practice evidence for some other purpose. For example, custom or routine practice is often used to establish the standard of care in negligence cases. Such evidence is not offered to prove conduct, thus FRE 406 does not apply.

e. Methods of Proof
Habit evidence can be used whether corroborated or not and regardless of the presence of eyewitness. It is reasoned on the ground that it relates to the sufficiency of evidence rather than admissibility (ACN).

Example:
Q (DEFENDANT’S LAWYER): Ms. Smith, how long have you know the plaintiff:
A: About 10 years.
Q: Do you know what kind of driver he is?
PLAINTIFF’S LAWYER: [Stands up.] Your honor, we object. This is improper character trait evidence.
DEFENDANT’S LAWYER: Your honor, may we be heard at the bench?
JUDGE: Yes. Please come to the bench. [Lawyers come up to the bench.]
DEFENDANT’S LAWYER: On direct, the witness testified she commutes every day with the plaintiff, and she was allowed to testify that the plaintiff always stops at the stop sign at Main and Elm, where this accident happened. Your honor previously ruled that this was proper habit evidence under Rule 406. All I’m trying to do on cross it to elicit testimony that contradicts this habit testimony.
JUDGE: Plaintiff?
PLAINTIFF’S LAWYER: Your honor, what the defense is trying to do is get into character trait evidence, which is explicitly inadmissible in civil cases under Rule 404(a). Just because we were allowed to bring out proper habit evidence under the habit rule doesn’t open the door to character trait evidence under the character rule.
JUDGE: The objection is sustained.

Intro to the Federal Rules of Evidence - 11

8. Sex Offenses Cases (FRE 412 – 415)

a.Inadmissibility of a victim’s character evidence in sexual offense (FRE 412)

i) Inadmissibility
The defendant, either in civil or criminal litigation, may not be introduce evidence of the victim’s
sexual character
Sexual behavior
Sexual predisposition: a mode of dress, speech, or life style.

ii) Rationale
To protect the victim’s privacy & to encourage victims to come forward to report the incidents.

iii) Criminal case exceptions (FRE 412(b)(1)(A) – (C))
1) Source of semen, injury, other physical evidence (e.g., pregnancy or disease)
2) Consent
3) Constitutional exceptions
Olden v. Kentucky, 488 U.S. 227 (1988): If the 6th/14th Amend. Confrontation Clause right are involved, evidence of V’s specific sexual acts may be admissible to cross examine V to show bias arising from her sexual history.

iv) Civil case exceptions (FRE 412(b)(2))
For example, in sexual harassment cases, evidence proving the victim’s sexual behavior or sexual predisposition is admissible if it is otherwise admissible and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.

v) Methods to prove exceptions
The implication of FRE 412 is evidence of specific acts is admissible while evidence of opinion or reputation, with an exception of civil cases, is not.

vi) Procedural Requirements (FRE 412(c))
Notice and in chamber procedures are mandatory.

b. Admissibility of a defendant’s/ Accused character evidence in sex offense (FRE 413-415)

i) Rationale
To protect the public from rapists and child molesters.

ii) Superseding 404(b)
“… may be considered for its bearing on any matter to which it is relevant (FRE 413(a), 414(a)): “if D did it before, D did it now”