In the law of evidence in the United States, public policy doctrines for the exclusion of relevant evidence 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 that arise out of the Federal Rules of Evidence ("FRE"): subsequent remedial measures, ownership of liability insurance, offers to plead guilty to a crime, offers to settle a claim, and offers to pay medical expenses. Many states have modified versions of the FRE under their own state evidence codes which widen or narrow the public policy exclusions in state courts.
The exclusionary rule, under which evidence gathered by the police from an illegal search is excluded, is of similar operation but is typically considered separately.
Subsequent remedial measures
A subsequent remedial measure is an improvement, repair, or safety measure made after an injury has occurred. FRE 407 prohibits the admission of evidence of subsequent remedial measures to show defendant's (1) negligence; (2) culpable conduct; (3) a defect in defendant's product; (4) defect in the design of defendant's product; or (5) the need for a warning or instruction.
Evidence of subsequent remedial measures are generally inadmissible for two reasons. First, courts do not want to discourage defendants from taking steps that further safety. Second, excluding subsequent remedial measures from evidence avoids having to give juries the difficult task of distinguishing between defendant's due care prior to plaintiff's injury, and defendant's due care subsequent to plaintiff's injury.
Subsequent remedial measures are, however, admissible into evidence for
proving defendant's ownership of the instrumentality that injured the plaintiff, if ownership is disputed
proving defendant's control of the instrumentality that injured the plaintiff, if control is disputed
proving the feasibility of undertaking precautionary measures, if feasibility is disputed
Example: In a slip and fall claim where plaintiff falls on the wooden steps leading into a building, defendant decides, as the ambulance is taking plaintiff to the hospital, to quickly sand down the stairs where plaintiff injured herself. FRE 407 prohibits plaintiff from introducing evidence of this subsequent remedial measure to prove that the steps were hazardous at the time of her injury.
If defendant says that he did not own the building where the plaintiff fell, and plaintiff disputes this claim, plaintiff may introduce evidence that the defendant sanded the stairs to show that defendant did, in fact, own the property on which the steps are located at the time her injury occurred.
If defendant claims that there was nothing he could have done to make the steps safer at the time of plaintiff's slip and fall, and plaintiff disputes this allegation, plaintiff may introduce evidence of the subsequent remedial measure to prove that undertaking precautionary measures was, in fact, feasible.
Note that in California, California Evidence Code ("CEC") §1151 designates as inadmissible evidence of subsequent remedial measures only if it is being offered to prove (1) negligence or (2) culpable conduct; California state courts, therefore, have abandoned the exclusion of evidence of subsequent remedial measures when being used to prove defects in defendant's product or design of defendant's product, or to prove that there was a need for a warning or instruction.
Ownership of liability insurance
Evidence of a party's ownership of—or lack of ownership of—liability insurance is inadmissible to prove (1) negligence or (2) wrongful conduct because 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 four exceptions to the rule of inadmissibility: evidence of a party's ownership of liability insurance—or of a party's failure to own liability insurance—is admissible to prove (1) a witness' bias or prejudice, i.e. for witness impeachment; (2) agency; (3) ownership; and (4) control.
If the owner of the insurance policy disputes ownership or control of the property, for instance, 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.
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.
Additionally, an 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 that in California, California Evidence Code ("CEC") §1155 provides that evidence of a party's whole or part ownership of liability insurance is inadmissible to prove (1) negligence or (2) other wrongdoing. The statute does not include total lack of ownership of liability insurance, which may thus be used to prove that defendant did not exercise due care.
Offers to plead guilty to a crime
FRE 410 holds that (1) withdrawn guilty pleas; (2) nolo contendere pleas; (3) statements made during proceedings regarding guilty pleas; (4) statements made during proceedings regarding nolo contendere pleas; (5) and statements made during plea discussions with an attorney present are inadmissible for public policy reasons even if they are relevant. The motivation behind excluding such pleas from evidence is to encourage plea bargaining.
Two FRE-contained exceptions apply to this rule: criminal pleas, plea discussions, and related statements are admissible (i) in any proceeding where another statement made in the course of the same plea or plea discussion 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.
Additionally, a criminal defendant may waive inadmissibility protections, rendering criminal pleas, plea discussions, and related statements admissible at trial. It is 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, to protect against the possibility of the defendant later changing her story.
Note that if a defendant chooses not to withdraw her guilty plea, this is an admission by a party opponent and may be admitted into evidence in subsequent civil proceedings.
Offers to settle a claim
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. A 2006 amendment to the 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, subject to FRE 403.
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 she possesses 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; merely disclosing a document's existence and mentioning it during a settlement conference does not insulate it from being discovered and admitted.
Additionally, the public policy exception of excluding relevant evidence arising out of an offer to settle cannot not apply if the evidence sought to be introduced is a claim made in a period before a dispute between the parties arose.
Example: Florida-based piano teacher P gets her expensive, snow white tile floors polished by North Carolina-based cleaning company C on March 22. C mails P a bill for $100,000 on March 29. P thought that the service would only cost $75,000.00, and disputes the $100,000 charge. Unable to come to a compromise with P, C brings suit on May 8 in federal court to collect $200,000. FRE 408 does not prohibit P's introduction of the $100,000 March bill into evidence as an admission by C that the total amount disputed cannot exceed $100,000.
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 is inadmissible despite its relevance. 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.
Statements made in connection with offers to pay medical expenses, however, are not excluded by FRE 409.
Example: Plaintiff P slices her lip on a shard of glass that somehow made its way into a salad prepared in defendant D's restaurant. D later visits P in the hospital, puts a bouquet of sunflowers on the table next to the bed where P is sobbing in pain, and exclaims,"I'm so sorry about your injury, it was completely my fault! Please don't worry about your expenses for this hospital visit, I'll write you a check for whatever your bills add up to." In a subsequent personal injury suit brought by P against D in federal court, P may introduce D's statement "I'm so sorry about your injury, it was completely my fault!" as an admission of fault by D.
Note that in California, California Evidence Code ("CEC") §1152(a) renders both offers to pay medical expenses as well as "statements made in negotiation thereof" inadmissible to prove liability. In the above example, therefore, a CA court would prohibit P's introduction of not only the "Please don't worry about your expenses for this hospital visit, I'll write you a check for whatever your bills add up to" statement, but also the "I'm so sorry about your injury, it was completely my fault" statement.
Mediation proceedings: a California-specific rule
California law excludes from evidence and discoveryrelevant statements made "for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation" through California Evidence Code ("CEC") §§1115-1125, for the public policy purpose of encouraging the resolution of legal conflicts by mediation.
Exclusionary rule
The exclusionary rule is another rule under which relevant evidence may be excluded, based in part on public policy concerns. It causes evidence gathered by the police from an illegal search to be inadmissible in a criminal case. The exclusion is intended, in part, to discourage law enforcement officials from violating the search subject's constitutional rights 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.
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. In some, but not all, civil and mixed law jurisdictions, the term delict is used to refer to this category of civil wrong, though it can also refer to criminal offences in some jurisdictions and tort is the general term used in comparative law. The word tort stems from Old French via the Norman Conquest and Latin via the Roman Empire. The word 'tort' was first used in a legal context in the 1580s, although different words were used for similar concepts prior to this time.
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
Hearsay is testimony from a witness under oath who is reciting an out-of-court statement that is being offered to prove the truth of the matter asserted.
Liability insurance is a part of the general insurance system of risk financing to protect the purchaser from the risks of liabilities imposed by lawsuits and similar claims and protects the insured if the purchaser is sued for claims that come within the coverage of the insurance policy.
Character evidence is a term used in the law of evidence to describe any testimony or document submitted for the purpose of proving that a person acted in a particular way on a particular occasion based on the character or disposition of that person. In the United States, Federal Rule of Evidence 404 maps out its permissible and prohibited uses in trials. Three factors typically determine the admissibility of character evidence:
the purpose the character evidence is being used for
the form in which the character evidence is offered
the type of proceeding in which the character evidence is offered
The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision. The trier of fact is a judge in bench trials, or the jury in any cases involving a jury. The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation. The rules vary depending upon whether the venue is a criminal court, civil court, or family court, and they vary by jurisdiction.
Where two or more persons are liable in respect of the same liability, in most common law legal systems they may either be:
The party admission, in the law of evidence, is a type of statement that appears to be hearsay but is generally exempted (excluded) from the definition of hearsay because it was made by a party to the litigation adverse to the party introducing it into evidence.
Witness impeachment, in the law of evidence of the United States, is the process of calling into question the credibility of an individual testifying in a trial. The Federal Rules of Evidence contain the rules governing impeachment in US federal courts.
Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property. In common-law jurisdictions the term is most commonly used to refer to a type of tort lawsuit in which the person bringing the suit has suffered harm to his or her body or mind. Personal injury lawsuits are filed against the person or entity that caused the harm through negligence, gross negligence, reckless conduct, or intentional misconduct, and in some cases on the basis of strict liability. Different jurisdictions describe the damages in different ways, but damages typically include the injured person's medical bills, pain and suffering, and diminished quality of life.
The collateral source rule, or collateral source doctrine, is an American case law evidentiary rule that prohibits the admission of evidence that the plaintiff or victim has received compensation from some source other than the damages sought against the defendant. The purpose of the rule is to ensure that the wrongful party pays the full cost of the harm caused, so that future harmful conduct is thereby deterred or, at least, fully included in the defendant's cost of doing business. Subrogation and indemnification principles then commonly provide that the person who paid the initial compensation to the plaintiff or victim has a right to recover any double recovery from the plaintiff or victim. For example, in a personal injury action, evidence that the plaintiff's medical bills were paid by medical insurance, or by workers' compensation, is not generally admissible and the plaintiff can recover the amount of those bills from the defendant. If the plaintiff then collects the amount of medical bills from the defendant, that amount is then typically paid by the plaintiff to the insurance carrier under principles of subrogation and indemnification.
Hearsay evidence, in a legal forum, is testimony from an under-oath witness who is reciting an out-of-court statement, the content of which is being offered to prove the truth of the matter asserted. In most courts, hearsay evidence is inadmissible unless an exception to the hearsay rule applies.
Tort reform refers to changes in the civil justice system in common law countries that aim to reduce the ability of plaintiffs to bring tort litigation or to reduce damages they can receive. Such changes are generally justified under the grounds that litigation is an inefficient means to compensate plaintiffs; that tort law permits frivolous or otherwise undesirable litigation to crowd the court system; or that the fear of litigation can serve to curtail innovation, raise the cost of consumer goods or insurance premiums for suppliers of services, and increase legal costs for businesses. Tort reform has primarily been prominent in common law jurisdictions, where criticism of judge-made rules regarding tort actions manifests in calls for statutory reform by the legislature.
In United States law, a declaration against interest is an exception to the rule on hearsay in which a person's statement may be used, where generally the content of the statement is so prejudicial to the person making it that they would not have made the statement unless they believed the statement was true. The Federal Rules of evidence limit the bases of prejudices to the declarant to tort and criminal liability. Some states, such as California, extend the prejudice to "hatred, ridicule, or social disgrace in the community."
Relevance, in the common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case, or to have probative value to make one of the elements of the case likelier or not. Probative is a term used in law to signify "tending to prove". Probative evidence "seeks the truth". Generally in law, evidence that is not probative is inadmissible and the rules of evidence permit it to be excluded from a proceeding or stricken from the record "if objected to by opposing counsel". A balancing test may come into the picture if the value of the evidence needs to be weighed versus its prejudicial nature.
The business records exception to the U.S. hearsay rule is based on Rule 803(6) of the Federal Rules of Evidence (FRE). It is sometimes referred to as the business entry rule.
Robinson v Harman (1848) 1 Ex Rep 850 is an English contract law case, which is best known for a classic formulation by Parke B on the purpose and measure of compensatory damages for breach of contract that,
the rule of the common law is, that where a party sustains loss by reason of a breach of contract, he is, so far as money can do it to be placed in the same situation, with respect to damages, as if the contract had been performed.
Legal protection insurance (LPI), also known as legal expenses insurance (LEI) or simply legal insurance, is a particular class of insurance which facilitates access to law and justice by providing legal advice and covering the legal costs of a dispute, regardless of whether the case is brought by or against the policyholder. Depending on the national rules, legal protection insurers can also represent the policyholder out-of-court or even in-court.
Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, is a case in which a landmark decision about the admissibility and authentication of digital evidence was set down in the form of a 100-page opinion by Magistrate Judge Paul W. Grimm.
Civil procedure in South Africa is the formal rules and standards that courts follow in that country when adjudicating civil suits. The legal realm is divided broadly into substantive and procedural law. Substantive law is that law which defines the contents of rights and obligations between legal subjects; procedural law regulates how those rights and obligations are enforced. These rules govern how a lawsuit or case may be commenced, and what kind of service of process is required, along with the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks are to function.
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