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18 Cards in this Set

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  • Back
Subsequent Remedial Measures - Rule 407
Not Admissible to Prove Fault: Evidence of subsequent remedial measures is inadmissible to prove fault, which includes negligence, culpable conduct, product or design defect, and inadequate warnings or instructions.
Rule 407 - Remedial Measures
Remedial measures are those that would have made an earlier injury or harm less likely to occur.
Rule 407 - Exception
Admissible for Other Purposes: The court may admit evidence of subsequent remedial measures for another purpose, such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures.

Disputed Issue: Unless the other purpose is related to an issue that is disputed, evidence is automatically excluded.
Subsequent Remedial Measures - Rule 403 Balancing
If the evidence is found admissible, then Rule 403 balancing is necessary vecause such proof is very susceptible to risk of improper use to prove fault.
Settlement Negotiations – Rule 408
Inadmissible to Prove or Disprove Validity or Amount of Disputed Claim: Acts and statements made during settlement negotiations may not be admitted to prove or disprove the amount or validity of a disputed claim.

Inadmissible to Impeach by Contradiction: Statements made during settlement negotiations may not be admitted to impeach by contradiction.
Rule 408 - Types of Evidence Excluded
1. Acts or Statements Made During Negotiations

2. Offers to Settle or Acceptance of Settlement Offers

3. Tender or Acceptance of Consideration
Offer to Pay Medical Expenses – Rule 409
Inadmissible to Prove Liability: Offers to pay medical expenses or other similar related expenses is inadmissible to prove liability.

Narrow Exclusion: The rule applies only to statements or offers related to the payment of medical expenses, which means that unrelated statements may be admitted.
Prior Guilty Plea - Rule 410
A statement made during a plea discussion with an attorney for the prosecuting authority cannot be used against a defendant who made the plea or participated in plea negotiations.
Rule 410 - Reasonable Belief of Apparent Authority
Courts have extended the rule to protect statements where the defendant can show that (1) the law enforcement officer had actual authority to bargain and was doing so, or (2) the defendant believed that bargaining was occurring and his belief was reasonable in the circumstances.
410(b) - Exceptions
Rule of Completeness: If the defendant offers a misleading portion of what was said, then the prosecution can introduce evidence to put that portion into context.

Subsequent Prosecution for Perjury: If defendant made a statement under oath, on the record, and with counsel present.
Liability Insurance - Rule 411
Inadmissible to Prove Negligence or Misconduct: Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.

Exceptions: The court may admit this evidence for another purpose, such as proving a witness’s bias or proving agency, ownership, or control.
Attorney-Client Privilege - Elements
Confidential communications made for the purpose of rendering professional legal services to the client.

1. Confidential
2. Communications
3. Rendering Legal Services
Attorney-Client Privilege - Confidential
Privileged communications must be deemed confidential, which is based on identity of the parties and the reasonable expectations of confidentiality.
Circle of Confidentiality - Indispensable Persons
1. Ministerial employees such as clerks, secretaries, and messengers are within the circle because they are indispensible to the work.

2. 3rd person experts who are present in order to assist in “translation” are included.

3. Whether the communication was made to the attorney’s agent in confidence for the purpose of obtaining legal advice.
Circle of Confidentiality - Joint Clients
The privilege applies to joint clients who consult with the same attorney on a matter of common interest. One client may speak in the presence of another client without nullifying privilege.
Circle of Confidentiality - Pooled Defenses
The privilege applies if the clients have a common interest in the matter being litigated. Clients with separate attorneys can pool information without destroying the privilege.
Reasonable Precautions: Scavengers & Eavesdropper
Privilege protects otherwise privileged communications that are intercepted by eavesdroppers or scavengers if the attorney and client took reasonable precautions to prevent disclosure.
Attorney-Client Privilege - Communication
The privileged information must derive from communication between the client and the attorney.