Monday, September 28, 2009
I Need A Remedy: Court Of Appeals Of Wisconsin Finds Subsequent Remedial Measure Rule Inapplicable In Criminal Cases
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment....
In its recent opinion in State v. Conley, 2009 WL 3018121 (Wis.App. 2009), the Court of Appeals of Wisconsin had to answer the following question: Does this rule apply in criminal cases? It answered the question in the negative. I disagree.
In Conley, Dale Conley was convicted of two counts of first-degree sexual assault of a child and two counts of incest of a child based upon crimes that he allegedly committed against his twelve year-old daughter. After the daughter told her mother, Conley's wife, about the second of these alleged acts, the mother told Conley to put a lock on the inside of the daughter's bedroom door which would prevent anyone from entering her room when it was locked. Conley thereafter installed such a lock.
At trial, and without objection, the prosecution presented evidence about Conley's installation of the lock and later contended during closing that the act was evidence of Conley's "consciousness of guilt." Defense counsel countered that Conley installed the lock merely to satisfy his wife.
After Conley was convicted, he appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial counsel failed to object to evidence of his installation of the lock, which he claimed was inadmissible as a subsequent remedial measure under Wisconsin Stat. Section 904.07. In other words, according to Conley, after an event -- the sexual assault of his daughter -- he took a measure -- the installation of the lock -- which, if previously taken, would have made the event less likely to occur, rendering evidence of the lock inadmissible to prove his criminal culpability in connection with the event.
The problem for Conley was that the Court of Appeals of Wisconsin found that Wisconsin Stat. Section 904.07 "is not applicable in criminal cases." And it did so for a few reasons. First, the court found "guidance in the fact that this rule of evidence is patterned after Federal Rule of Evidence 407, which was drafted to limit the use of subsequent remedial measures to prove negligence in civil litigation." As support for this claim, the court cited to the Advisory Committee Note to the Rule, which states, inter alia, that the Rule
incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault. The rule rests on two grounds. (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence....(2) The other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.
I have two problems with this argument. First, both the Advisory Committee Note and the Rule talk about subsequent remedial measures being inadmissible to prove negligence or other culpable conduct, meaning that the Rule was not drafted solely to limit the use of subsequent remedial measures to prove negligence. Second, even if the Rule was drafted solely to apply in civil cases, why should the court not apply it in criminal cases if the extension makes sense? After all, the original Federal Rule of Evidence 407 did not indicate that the Rule applied to products liability actions, but a majority of circuits found that the rule did apply to such actions, leading to the Rule being amended.
Now, in fairness, Wisconsin never amended Wisconsin Stat. Section 904.07 and has found that it does not apply to products liability actions, see, e.g., Huss v. Yale Materials Handling Corp., 538 N.W.2d 630, 634-35 (Wis.App. 1995), although it has deemed evidence of subsequent remedial measures inadmissible in such actions on other grounds. But it seems to me that the Court of Appeals of Wisconsin could not ignore the way in which federal circuit courts extended Federal Rule of Evidence 407 when its next argument in Conley was that
Funny you would ask; what you say is almost entirely true. As you observed, there is a very well-settled aspect of evidence law, with a number of examples, which provides that evidence is almost always at least as freely admissible (if not more so) when offered against a civil defendant than it would be when offered against the same individual or some other defendant in a criminal prosecution. One of the reasons “for treating civil and criminal cases differently is that the stakes are higher in criminal cases, where liberty or even life may be at stake, and where the government's sole interest is to convict.” Mitchell v. United States, 526 U.S. 314, 328 (1999) (citation omitted; explaining why defendant’s silence may be used as evidence against him in a civil trial but not at a criminal trial arising out of the same allegations).
At least until recently, the Federal Rules of Evidence contained no exceptions to this principle – until the unfortunate adoption of the 2006 amendment to FRE 408(a)(2), which now provides that incriminating statements made by a civil defendant while trying to compromise a civil claim can (depending on the identity of the plaintiff) sometimes be used against him at a later criminal trial, but not at the civil trial arising out of the same allegations or at any other civil trial. The Advisory Committee did not even try to furnish any coherent justification for this anomalous result, and common sense confirms that none is available. The Committee Notes posit that “Where an individual makes a statement in the presence of government agents, its subsequent admission in a criminal case should not be unexpected” – at least, I suppose, when it is offered against an accused who was not laboring under the disadvantage of knowing only what this rule said for 25 years before its most recent amendment. But that logic, such as it is, would obviously apply with even great force to support an amendment based on the assumption that a civil defendant who makes a statement in the presence of the plaintiff’s lawyer during settlement negotiations should not be too surprised when that statement is later offered against him by that same lawyer in that same case. This is one of the many reasons (there are others) why this aspect of the 2006 amendment to Rule 408 was a bad idea and very poorly reasoned, and why it was opposed in the public comments submitted by literally every professional and judicial and academic observer other than the United States Department of Justice – the only party in the nation which benefited from the adoption of this particular provision.)