Privileges and other policy exclusions - Compromise, payment...

Learning Outcomes

This article examines the Federal Rules of Evidence that exclude otherwise relevant evidence for public‑policy reasons on the MBE, including:

• Distinguishing among FRE 407 (subsequent remedial measures), 408 (compromise offers and negotiations), 409 (offers to pay medical expenses), and 410 (pleas and plea discussions), and determining which rule applies to a particular evidentiary offer.
• Articulating each rule’s policy rationale and using that rationale to evaluate answer choices, spot common traps, and eliminate distractors that misapply the rules.
• Applying the precise admissibility limits of each rule, including what types of conduct, statements, and documents are covered and what uses are expressly barred.
• Recognizing and deploying key exceptions that permit otherwise‑excluded evidence for another purpose, such as proving ownership or control, feasibility, bias, notice, obstruction, or completeness.
• Analyzing how these policy‑based exclusions interact with general relevance and prejudice principles (FRE 401–403), as well as limited‑purpose evidence and limiting instructions under FRE 105.
• Integrating these rules with the rule of completeness (FRE 106) and related doctrines to determine when partial settlement or plea statements open the door to additional contextual evidence.
• Developing exam‑style reasoning frameworks for short, fact‑intensive MBE questions, enabling rapid classification of the evidence, selection of the controlling rule, and prediction of the likely admissibility ruling.

MBE Syllabus

For the MBE, you are required to understand the rules excluding certain relevant evidence due to overriding public policy concerns aimed at encouraging socially beneficial conduct, with a focus on the following syllabus points:

• Identify situations where evidence of subsequent remedial measures is offered and determine its admissibility under FRE 407, including exceptions.
• Analyze the admissibility of compromise offers and statements made during settlement negotiations under FRE 408, recognizing its scope and exceptions (including the special criminal-case carve‑out).
• Distinguish offers to pay medical expenses (FRE 409) from accompanying statements of fact, knowing which may be admissible.
• Apply FRE 410 to determine the admissibility of withdrawn guilty pleas, nolo contendere pleas, offers to plead, and statements made during plea discussions against a defendant.
• Understand how these policy-based exclusions interact with other rules: relevance and prejudice (FRE 401–403), limiting instructions (FRE 105), and the rule of completeness (FRE 106).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Plaintiff slips and falls on Defendant Store's wet floor. The next day, Defendant Store installs non-slip mats in the area. Plaintiff offers evidence of the mat installation to prove Defendant Store was negligent. Is this evidence admissible?
   1. Yes, because it shows Defendant Store recognized the danger.
   2. Yes, because it is relevant to the issue of negligence.
   3. No, because subsequent remedial measures are excluded to prove negligence.
   4. No, because the installation occurred after the plaintiff's injury.
2. During settlement talks regarding a contract dispute, Defendant says to Plaintiff, "Okay, the goods were late, that was my fault, but I can only offer you $5,000 to settle this." Plaintiff rejects the offer and sues. At trial, Plaintiff seeks to introduce Defendant's statement "that was my fault" as an admission of liability. Is the statement admissible?
   1. Yes, because it is an admission by a party-opponent.
   2. Yes, because statements of fault made during settlement negotiations are admissible.
   3. No, because statements made during compromise negotiations are inadmissible to prove liability.
   4. No, unless the defendant was represented by counsel during the negotiations.
3. Driver hits Pedestrian. Driver rushes over and says, "Don't worry about your medical bills, I'll pay for everything. I was checking a text message and didn't see you." Pedestrian sues Driver. Is Driver's entire statement admissible to prove Driver's liability?
   1. Yes, the entire statement is admissible as an admission.
   2. No, the entire statement is inadmissible because it contains an offer to pay medical expenses.
   3. The offer to pay medical expenses is inadmissible, but the statement "I was checking a text message..." is admissible.
   4. The offer to pay medical expenses is admissible to show generosity, but the statement about texting is inadmissible hearsay.
4. Defendant pleads guilty to robbery but withdraws the plea before sentencing. At Defendant's subsequent trial for the same robbery, the prosecution seeks to introduce evidence of the withdrawn guilty plea. Is this evidence admissible?
   1. Yes, because it is relevant to show consciousness of guilt.
   2. Yes, if the defendant voluntarily entered the plea.
   3. No, because withdrawn guilty pleas are generally inadmissible against the defendant.
   4. No, unless the defendant testifies inconsistently with the plea.

Introduction

The Federal Rules of Evidence generally favor admitting any evidence that is both relevant and not unduly prejudicial. However, some categories of highly probative evidence are excluded for reasons of public policy. The idea is that society is better off if people:

• Fix dangerous conditions after accidents.
• Negotiate settlements freely.
• Offer to pay medical bills out of basic decency.
• Engage in candid plea discussions with prosecutors.

FRE 407, 408, 409, and 410 implement these policies by carving out narrow exclusions from the usual rule of admissibility. On the MBE, questions on these rules are typically short, fact‑heavy, and designed to test your ability to:

1. Identify which rule applies.
2. Identify who is offering the evidence and for what purpose.
3. Apply any express exceptions and, if appropriate, the general relevance and prejudice rules (FRE 401–403) and limiting instructions (FRE 105).

Key Term: Policy-Based Exclusion
A rule that excludes otherwise relevant evidence not because it is unreliable, but because admission would undermine an important social policy (e.g., promoting settlements or repairs).

These policy-based rules operate in addition to the usual requirements of relevance and hearsay. If a piece of evidence survives the policy rule, it can still be excluded under FRE 403 as unfairly prejudicial or under the hearsay rules; conversely, if it violates a policy rule, it is inadmissible even if it is otherwise reliable and non-hearsay.

Subsequent Remedial Measures (FRE 407)

FRE 407 provides that when measures are taken that would have made an earlier injury or harm less likely to occur, evidence of these subsequent measures is not admissible to prove:

• Negligence;
• Other culpable conduct;
• A defect in a product or its design; or
• A need for a warning or instruction.

The rule primarily applies to measures taken by a party after the event that gave rise to litigation (typically the defendant). It generally does not protect repairs or changes made by non‑parties; post‑accident changes made by someone else are usually admissible because excluding them does not encourage the defendant to act more safely.

The policy is straightforward: defendants should not be punished for doing the right thing after an accident. Courts want people to fix hazards and improve designs without worrying that those repairs will be used as a confession of prior negligence.

Key Term: Subsequent Remedial Measure
An action taken after an injury or harm that, if taken earlier, would have made the injury or harm less likely (e.g., repairing a step, redesigning a product, adding a warning).

What Counts as a “Measure”

Examples include:

• Repairing or replacing dangerous equipment or premises.
• Adding guardrails, signs, or warnings.
• Changing a product design or manufacturing process.
• Adopting new safety protocols.

Purely investigative steps (like accident reports) are not "measures" under 407, although they may raise other evidentiary issues.

FRE 407: Scope and Common Traps

• The exclusion applies in negligence and strict liability cases, including products liability. You may see defendants argue that subsequent product redesign is inadmissible to show the original product was defective.
• If the remedial measure is taken before the injury at issue, FRE 407 does not apply; the rule only covers measures taken "after the injury or harm."
• The rule does not bar the plaintiff from arguing that the defendant could have taken similar steps before the accident; it just prevents using the fact that those steps were later taken as substantive proof of fault.

Exceptions to FRE 407 Exclusion

Evidence of subsequent remedial measures may be admitted for another purpose, such as:

• Impeachment.
• Proving ownership, control, or the existence of a duty, if disputed.
• Proving feasibility of precautionary measures, if disputed.

Key Term: Feasibility (Under FRE 407)
The practical possibility of taking a safety measure—whether it could be done, not whether it would have been required or reasonable.

Key exam point: the feasibility exception is triggered only when feasibility is actually disputed, not simply when the defendant denies negligence. If the defendant says "We exercised reasonable care," that is not a feasibility dispute. If the defendant says "There was no safer design available" or "It was impossible to make it safer," that is a feasibility dispute.

Similarly, impeachment must be genuine, not a pretext. If the defendant testifies "We always use the safest possible design," subsequent design changes may be admissible to contradict that claim.

Worked Example 1.1

Plaintiff was injured when using a lawnmower manufactured by Defendant Corp. Plaintiff sues, alleging a design defect made the mower unsafe. Defendant Corp.'s engineering expert testifies, "At the time of manufacture, it was technologically impossible to design a safer blade guard for this type of mower." Plaintiff seeks to introduce evidence that one year after Plaintiff's accident, Defendant Corp. redesigned the mower with a new, much safer blade guard. Is this evidence admissible?

Answer:
Yes, likely. While evidence of subsequent remedial measures is generally inadmissible under FRE 407 to prove a product defect or negligence, it can be admitted for another purpose, such as proving the feasibility of precautionary measures if disputed. Here, the defense expert's testimony ("technologically impossible") directly disputes the feasibility of a safer design at the time of manufacture. Therefore, evidence of the later redesign is admissible to rebut the feasibility claim.

Worked Example 1.2

Store owns a parking lot shared with an adjacent Office Building. After a customer is injured in the lot, Store denies that it controlled the area where the accident occurred. Plaintiff offers evidence that two days after the accident, Store installed new lighting and painted safety markings in that specific area. Store objects under FRE 407. How should the court rule?

Answer:
The evidence is admissible to prove control. Under FRE 407, subsequent remedial measures can be used to show ownership or control when those issues are disputed. Store’s later improvements tend to show it had control over the area, even though the evidence may not be used to show Store was negligent.

Compromise Offers and Negotiations (FRE 408)

FRE 408 is designed to encourage settlement by limiting the use of settlement-related communications.

It excludes evidence of:

1. Furnishing, offering, or promising to furnish—or accepting, offering, or promising to accept—a valuable consideration in compromising or attempting to compromise a claim; and
2. Conduct or statements made during compromise negotiations about the claim.

When offered:

• To prove or disprove the validity or amount of a disputed claim, or
• To impeach by prior inconsistent statement or contradiction.

Key Term: Compromise Offer
An offer to settle a disputed claim (validity or amount is contested) by giving or accepting something of value, including the accompanying negotiations.

Requirement of a “Disputed Claim”

FRE 408 applies only if there is a dispute about either:

• The validity of the claim; or
• The amount of the claim.

If liability and amount are fully admitted and the defendant simply says, "I know I owe you $10,000, but will you take $8,000 if I pay today?", the admission of liability may be admissible; the offer itself may still be excluded as a compromise offer, but there is no "disputed claim" that would automatically shield the admission.

Contrast this with a classic settlement context: "I'm not sure I'm legally responsible, but to avoid litigation I'll give you $5,000." That entire conversation is within FRE 408 if it's about a disputed claim.

Statements Covered and Not Covered

• Statements of fact, expressions of fault ("It was my fault"), and concessions on issues made during settlement talks are all protected when offered to prove liability or amount.
• FRE 408 applies whether the compromise was successful or not.
• The rule does not protect facts learned from other sources (e.g., independent witnesses or documents).

Importantly, FRE 408 is not a hearsay rule; it applies even if the statements are non‑hearsay (such as party‑opponent admissions). On the MBE, watch for answers that say "admissible as an admission of a party-opponent" without acknowledging 408—those are usually wrong when the statement was made in settlement negotiations about a disputed claim.

Special Criminal-Case Carve‑Out

Under the current text of FRE 408, there is a narrow but important exception: statements made during compromise negotiations with a public office or agency acting in its regulatory, investigative, or enforcement capacity may be admitted in a subsequent criminal case against a party, if offered for purposes not barred by the rule’s main clause.

In other words, a defendant cannot assume that settlement talks with a regulator are "safe" in later criminal prosecutions. This is a frequent exam trap.

Exceptions: Other Permitted Uses

Like 407, FRE 408 allows settlement-related evidence to be admitted for another purpose, such as:

• Proving a witness’s bias or prejudice (e.g., showing that a witness settled favorably with one party).
• Negating a contention of undue delay (e.g., to explain why a claim was filed late).
• Proving an effort to obstruct a criminal investigation or prosecution (e.g., an offer to pay a witness to drop charges).
• Occasionally, to prove notice or the existence of a duty, if not being used to show liability for the claim at issue.

If the evidence is admitted for a limited purpose, FRE 105 authorizes the court—on request—to instruct the jury that it may consider the evidence only for that limited purpose and not as proof of liability or amount.

Key Term: Disputed Claim
A claim as to which there is some genuine disagreement about either liability or the amount owed at the time of the alleged settlement communication.

Worked Example 1.3

Plaintiff sends Defendant a demand letter: "You owe me $20,000 for the damage your truck did to my store. If you pay in full within 10 days, I won't sue." Defendant replies: "I know I owe you the full $20,000, but I don’t have that much now. I'll give you $12,000 to settle." Plaintiff sues for $20,000 and offers Defendant's statement "I know I owe you the full $20,000" as proof of liability and amount. Defendant objects under FRE 408. How should the court rule?

Answer:
The admission of liability is likely admissible. At the time of Defendant’s statement, there was no genuine dispute about liability or amount—Defendant expressly admitted owing the full $20,000. FRE 408 is aimed at compromise of a disputed claim. While the offer to pay $12,000 is inadmissible as a compromise offer, the admission "I know I owe you the full $20,000" is not protected by 408 and can be admitted as an opposing party’s statement.

Offers to Pay Medical and Similar Expenses (FRE 409)

FRE 409 provides that evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

Key Term: Offer to Pay Medical Expenses
An offer or promise to pay costs related to medical, hospital, or similar care resulting from an injury (e.g., "I'll pay your hospital bills").

The rule is narrower than 408 in two key ways:

1. It covers only medical and similar expenses, not all settlement offers.
2. It does not exclude accompanying statements of fact or fault.

This reflects a strong policy of encouraging humanitarian gestures at the scene of an accident.

Important Distinction: Admissibility of Accompanying Statements

Unlike Rule 408, which excludes both offers and related statements made in settlement negotiations, Rule 409 excludes only the offer or payment itself. Words of apology, explanations, or admissions of fault that accompany the offer are not protected by 409.

Thus, "I'm so sorry; I ran the red light. Let me pay for your ambulance and hospital stay" is partly protected and partly not:

• "Let me pay for your ambulance and hospital stay" → inadmissible to prove liability (FRE 409).
• "I ran the red light" → admissible as a party‑opponent admission, assuming no other rule excludes it.

FRE 409 also does not require a disputed claim; it applies even before any claim is asserted.

Worked Example 1.4

After a car accident, Driver says to Biker, "I'm so sorry, I totally ran that stop sign. Let me pay for your ambulance ride and ER visit." Biker sues Driver. Can Biker introduce Driver's entire statement?

Answer:
No, not the entire statement. The offer to pay for the ambulance and ER visit is inadmissible under FRE 409 to prove liability. However, the admission of fault ("I totally ran that stop sign") that accompanied the offer is admissible. Rule 409 only excludes the offer/payment itself, not surrounding statements.

Worked Example 1.5

Pedestrian’s leg is broken when struck by Motorist’s car. At the hospital, Motorist tells Pedestrian, "I'll pay all of your medical bills and reimburse you for your lost wages if you don't sue me." Pedestrian sues for both medical expenses and lost wages. Which parts of the statement are protected by FRE 409?

Answer:
Only the promise to pay medical bills falls within FRE 409. The promise to pay "lost wages" is not a "medical or similar expense" and is not protected by 409. The statement "if you don't sue me" indicates a settlement offer; depending on whether there is a disputed claim, the statement may be governed by FRE 408 instead. The admission implicit in the offer (that Motorist caused the injury) is not protected by 409.

Pleas, Plea Discussions, and Related Statements (FRE 410)

FRE 410 broadly excludes certain plea-related evidence when offered against the defendant who made the plea or participated in the discussions. It applies in both civil and criminal cases.

Specifically inadmissible against the defendant are:

1. A guilty plea that was later withdrawn.
2. A nolo contendere (no contest) plea.
3. Any statement made during proceedings under Federal Rule of Criminal Procedure 11 (or a comparable state rule) regarding either of the above pleas.
4. Any statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea, or resulted in a later‑withdrawn guilty plea.

Key Term: Plea Bargaining Statements
Statements made by a defendant during formal plea proceedings or during plea discussions with a prosecutor, about the charged crime or related matters.

Key Term: Withdrawn Guilty Plea
A guilty plea that the court permits the defendant to withdraw before sentencing; treated as if it never occurred for most evidentiary purposes.

Key Term: Nolo Contendere (No Contest) Plea
A plea in which the defendant does not contest the charges; it results in a conviction but generally cannot be used as an admission in later civil or criminal cases.

Scope and Common Traps

• The rule protects the defendant; it does not protect the government. The defendant may choose to offer his own plea-related statements if strategically useful.
• An unwithdrawn guilty plea that results in a final judgment of conviction is not covered by 410 and is generally admissible under the usual rules (e.g., as a conviction to impeach or as substantive evidence).
• Statements made to police officers during informal discussions usually are not covered unless the officer is clearly acting as the prosecutor’s agent in formal plea talks. Courts look at whether:
  • The defendant had a subjective expectation of negotiating a plea, and
  • That expectation was objectively reasonable.

Statements made in routine police interviews ("If I confess, will you talk to the prosecutor for me?") typically are not protected by 410.

Exceptions to FRE 410 Exclusion

A statement described above may be admitted in two specific situations:

1. Completeness (Fairness) Exception.
   If, in any proceeding, a party introduces part of a plea discussion or plea‑related statement, the court may allow opposing parties to introduce other statements made in the same context that, in fairness, ought to be considered with the admitted statement. This is an application of the rule of completeness (FRE 106) to plea contexts.

2. Perjury or False Statement Prosecution.
   In a criminal proceeding for perjury or false statement, the prosecution may use the defendant’s plea‑related statements if:

   • The defendant made the statement under oath,
   • The statement was on the record, and
   • The defendant had counsel present.

Outside these narrow exceptions, the rule is absolute: withdrawn guilty pleas, nolo pleas, and protected plea‑discussion statements cannot be used against the defendant.

Worked Example 1.6

Defendant is charged with tax fraud. In plea discussions with the Assistant U.S. Attorney, Defendant says, "I knew I was under‑reporting income, but I thought I could fix it later." The parties fail to reach an agreement, and Defendant goes to trial. The prosecutor offers Defendant’s statement as evidence of willfulness. Defendant objects under FRE 410. How should the court rule?

Answer:
The objection should be sustained. The statement was made during plea discussions with "an attorney for the prosecuting authority" and the discussions did not result in a guilty plea. Under FRE 410, the statement is inadmissible against the defendant, subject only to the completeness and perjury exceptions, neither of which applies here.

Worked Example 1.7

Defendant pleads guilty to burglary in court, under oath and with counsel present. At sentencing, before judgment is entered, the court permits Defendant to withdraw the guilty plea. The case goes to trial. The prosecution seeks to introduce the withdrawn guilty plea as evidence of guilt. Defendant objects. How should the court rule?

Answer:
The court must exclude the withdrawn guilty plea. FRE 410 expressly makes withdrawn guilty pleas inadmissible against the defendant in any civil or criminal case, subject only to the narrow completeness and perjury/false statement exceptions. The fact that the plea was voluntary does not change the result.

Worked Example 1.8

Defendant pleads nolo contendere (no contest) to a DUI charge and is convicted. Later, in a civil suit arising from the same incident, Plaintiff seeks to introduce evidence of the nolo plea as an admission that Defendant was driving drunk. Defendant objects under FRE 410. How should the court rule?

Answer:
The objection should be sustained. A nolo contendere plea cannot be used against the defendant as an admission of guilt in subsequent civil or criminal proceedings. Although the conviction itself may have some collateral consequences, the plea is inadmissible against Defendant under FRE 410.

Exam Warning

Rule 410 excludes this evidence only when offered against the defendant who made the plea or statements. It does not prevent the defendant from introducing such evidence (for example, to show that the government made certain promises in plea talks, or to explain a delay).

Also remember:

• A straight, unwithdrawn guilty plea resulting in conviction is generally admissible as a conviction.
• Statements made to police that are not part of formal plea discussions with a prosecutor are not protected by 410 (though they may raise other issues, such as Miranda or voluntariness).
• If the defendant "opens the door" by offering part of a plea‑discussion statement, the completeness exception may allow the prosecution to introduce additional portions to avoid misleading the jury.

Key Point Checklist

This article has covered the following key knowledge points:

• FRE 407 excludes evidence of subsequent remedial measures when offered to prove negligence, culpable conduct, product defect, or need for a warning, but allows such evidence for other purposes, including proving ownership, control, feasibility (if disputed), or for genuine impeachment.
• FRE 408 excludes compromise offers and settlement negotiations when used to prove or disprove the validity or amount of a disputed claim or to impeach by prior inconsistent statement, but allows them for other purposes such as proving bias, negating undue delay, or showing efforts to obstruct an investigation. It applies only to disputed claims and contains a special carve‑out for certain government settlements and later criminal cases.
• FRE 409 excludes offers to pay medical, hospital, or similar expenses when offered to prove liability, but does not exclude accompanying factual statements or admissions of fault.
• FRE 410 excludes evidence of withdrawn guilty pleas, nolo contendere pleas, and plea‑related statements when offered against the defendant, with narrow exceptions for completeness and perjury/false statement prosecutions. It does not protect unwithdrawn guilty pleas or informal statements to police.
• These policy-based rules operate in addition to the general relevance, prejudice, and hearsay rules. If evidence is admitted for a limited purpose, FRE 105 authorizes limiting instructions to prevent misuse by the jury.

Key Terms and Concepts

• Policy-Based Exclusion
• Subsequent Remedial Measure
• Feasibility (Under FRE 407)
• Compromise Offer
• Disputed Claim
• Offer to Pay Medical Expenses
• Plea Bargaining Statements
• Withdrawn Guilty Plea
• Nolo Contendere (No Contest) Plea