Document Type

Article

Publication Date

1-1998

Abstract

Article IV of the Federal Rules of Evidence includes several rules that prohibit the use of specified types of information as evidence of particular propositions. Subsequent remedial measures are inadmissible to prove negligence (but admissible to show ownership, control, et cetera),' settlement offers are inadmissible to prove liability (but admissible to show bias or prejudice, or for other purposes),2 and so forth. Any exclusion of relevant evidence involves some distortion of reality in the sense that the picture presented to the trier of fact includes less information than the available total. That will be true whether the evidence is kept out by these special exclusionary rules, or by exclusionary rules intended to protect privacy or confidentiality, 3 or by rules that exclude evidence because it may be unreliable4 or because it may confuse, mislead, or unfairly prejudice the jury.5 Distortion in this general sense is not necessarily bad. It can serve general social goals, make trials more efficient, and improve the accuracy of fact-finding by focusing attention on relevant issues and probative evidence. Distortion of this unavoidable sort is not the type of effect that I hope to describe in this paper. When we exclude evidence that the defendant in a civil law suit offered to settle the claim for $100,000, that does distort the jury's view of the case. A juror who hears about this offer after voting for a defense verdict might wonder if her decision was wrong. But this exclusion does not alter the jury's view of what the trial is really about, and it is not based on a distorted view of how trials are conducted; it merely limits the moves the plaintiff can make. In this case the limitation is simple and sensible. The parties attempted to resolve their dispute by other means, and failed; that's over, and should have no bearing on the trial they are now conducting in court. I don't mean to minimize the importance of settlements. They are our major method of resolving disputes; trials are rare exceptions.6 But when a trial does occur, information about the settlement process can be ignored without pretending that the trial is something that it's not. Other Article IV rules, however, entail more basic distortions. I will focus on two: rule 404, which concerns character evidence, and rule 411, which deals with liability insurance. Rule 404, I claim, expresses a fundamentally false view of the content of common-law trials, while rule 411 embodies an equally basic misrepresentation of the context of personal-injury litigation.

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