March 7, 2009
The Accusations Fly: New York Court Finds Teacher Jury Impeachment Was Proper
The recent opinion of the New York Supreme Court, Appellate Division, 4th Judicial Department, in People v. Scerbo, 872 N.Y.S.2d 763 (N.Y.A.D. 4th Dept. 2009), reveals that New York courts allow for significantly more jury impeachment than do most courts across the country.
In Scerbo, Albert Scerbo, a former music teacher at the Onondaga Indian Nation School was arrested in December 2006 on allegations that he had sexual contact with two girls, ages 7 and 8. As the police investigation continued, additional girls ranging in age from 7 to 14-years-old made allegations that Scerbo touched them improperly through their clothing as they sat on his lap in the back of a darkened room while he showed movies or videos to the class. Thereafter, in August 2007, Scerbo was convicted of first-degree sexual abuse and endangering the welfare of a child. Judge William Walsh, however, later set aside these convictions based upon juror misconduct, and the 4th Department recently affirmed that decision (with a few modifications).
According to the 4th Department,
the court properly instructed the jurors that they should use their common sense, knowledge, and experience in evaluating the evidence but that, if a juror possessed special expertise related to a material issue in the case, the juror could not rely on that special expertise "to inject into your deliberations either a fact that is not in evidence or inferable from the evidence, or an opinion that could not be drawn from the evidence by a person without that special expertise." Despite that instruction, the evidence...established that two jurors, both of whom were educators, informed the other jurors that teachers are trained or informed never to touch students. That information is not within the common understanding of the average juror, and the issue whether it was appropriate for defendant to allow his female students to sit on his lap during class was a material issue in the case. Indeed, the record establishes that at least one juror was swayed by the opinions of the two jurors in voting to convict defendant. As the court concluded in granting defendant's motion, once a juror was "convinced that defendant knowingly violated some professional ethic by allowing students to sit on his lap, [the juror] was then able to make the next logical step of concluding that he did so only for the purpose of committing the crimes under consideration." Reversal was required under the circumstances of this case because the "jurors [were] exposed to prejudicial, extra-record facts."
This ruling was absolutely correct under New York precedent, but it would have been incorrect in most courtrooms across the country. Most states have a version of Federal Rule of Evidence 606(b), which states in relevant part that:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.
Under this Rule, statements by jurors themselves are considered an internal or intra-jury influence rather than an improper outside influence and thus cannot serve as the proper predicate for jury impeachment. But as the 4th Department correctly noted, New York precedent (there are no New York Rules of Evidence) does not recognize this distinction between internal and external influenes. Instead, under New York precedent,
It is well settled that "a jury verdict may not be impeached by proof of the tenor of [the jury's] deliberations, but it may be upon a showing of improper influence...." Improper influence includes jury conduct that tends to place the jury in possession of evidence not introduced at trial....In determining whether a jury has been subjected to improper influence, the court must examine the facts "to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered...." "Overall, a reversible error can materialize from (1) jurors conducting personal specialized assessments not within the common ken of juror experience and knowledge (2) concerning a material issue in the case, and (3) communicating that expert opinion to the rest of the jury panel with the force of private, untested truth as though it were evidence."
So, which rule do readers prefer?
(Hat tip to my colleague Tim O'Neill)
March 6, 2009
Who Watches The Watchman?: Court Of Appeals Of Texas Finds No Violation Of Right To Present A Defense In DUI Appeal Revolving Around Excluded Videotape
The opinion of the Court of Appeals of Texas in Peavey v. State, 248 S.W.3d 455 (Tex.App.-Austin 2008), reveals that an appellant seeking to prove a violation of the right to present a defense must first establish that the evidence excluded was relevant.
In Peavey, during the "early morning hours" of July 29, 2005, Round Rock Police Officer Timothy Thompson observed an older model Chevrolet Suburban on the interstate "twice weave from one lane to another, and almost strike construction barrels where the roadway narrowed." When Thompson activated his flashing overhead lights, the driver made no attempt to stop. Other officers joined the chase, and Thompson began issuing verbal commands over his vehicle's public address system to the driver to stop, but there was still no response.
After approximately seven to ten miles of pursuit, the Suburban exited the interstate onto a frontage road, turned into a side street and pulled into a parking lot and stop. Thompson ordered the driver, Markum Peavey, to get out of the Suburban. As Peavey got out,
he stumbled and almost fell to the ground. He staggered as he walked backward. Despite the officer's repeated commands for [Peavey] to lie on the ground, [Peavey] seemed preoccupied with one of his boots or pants leg and kept reaching down towards his foot. The officers suspected that [Peavey] might have a weapon. [Peavey] argued with the officer about getting on the ground. [Peavey] said that he was trying to get his shoes off. When told that if he did not follow commands, he was going to be shot with a beanbag gun, [Peavey] replied, "Go ahead and shoot me. Kill me then." As the officers struggled to get the handcuffs on, [Peavey] continued to resist, and officer Hunter had to use pepper spray on [Peavey]. [Peavey]'s eyes were washed out with water and emergency medical services treated him. [Peavey] was transported to the Round Rock jail facility where he refused a breath test. Officer Thompson administered a horizontal gaze nystagmus field sobriety test, but [Peavey] declined the other tests because of injuries to his leg or legs. Because [Peavey] had been pepper sprayed, he was interviewed by a medical officer before being placed in jail. Officers Thompson and Hunter both testified that [Peavey]'s speech was slurred, that he smelled of alcohol, and was intoxicated. It was established that, in the opinion of the officers, [Peavey] did not have control of his mental or physical faculties."
Peavey was subsequently convicted of felony driving a motor vehicle while intoxicated and evading arrest after the officers testified concerning these events at trial and a videotape of the events was introduced. Part of Peavey's defense at trial, however, was that he was not voluntarily intoxicated. Instead, according to Peavey, before the incident:
he worked "a half day" on July 28, 2005, supervising the construction of several different houses and at about 6:30 p.m., he drove to east Austin to pick up an employee, Gilbert Guerra, and take him to Leander where Guerra was to be a night watchman over construction supplies for six sites. Before reaching the designated location, [Peavey] stopped his Suburban to get gas and Guerra purchased an 18-pack of beer. Upon arriving at Guerra's trailer, [Peavey] consumed one beer, as he recalled, and Guerra gave him two or three beers to take with him. At about 8:30 p.m., [Peavey] stated that he arrived at Georgia's house where Chester's son, Tom Tutor, lived with his mother. [Peavey] found the Honda's engine too hot to work on, so he let it cool down. He drank two of the beers that he had, and Tom Tutor drank the other....[W]hen the vehicle's engine cooled, he began work on it and finished at about 11:00 p.m. When he finished, [Peavey] reported that Tom brought him a glass of red wine. [Peavey] claimed that he normally did not like wine, but he drank it on this occasion."
According to Peavey, this alcohol alone would not have resulted in the level of impairment detailed above, and he therefore speculated that someone slipped him a mickey, i.e., put a drug in his wine. To prove this defense, Peavey sought to introduce into evidence a police videotape of his 2000 DWI arrest; he wanted the jury,
who had seen the videotape in the instant case, to compare it with the 2000 videotape so that they could "see what he...looked like when he's been drinking all day versus what we think might have happened in this case." It [wa]s apparently [Peavey]'s position that the earlier videotape would show how [he] acted when he was under the influence of alcohol alone, as opposed to how the instant videotape showed [he] acted under the influence of alcohol and possibly a narcotic. The trial court sustained the State's objection of relevancy as to the 2000 DWI videotape. The State had argued that the evidence did not show the amount of intoxicants that [Peavey] had consumed on the other occasion; and that there was no evidence that [Peavey] had unknowingly ingested a drug in addition to the voluntarily consumed beer on the latter occasion. Further, there was no medical or expert testimony that the ingestion of a drug would have caused [Peavey] to react as he did on the latter occasion."
The trial court bought the state's reasoning and excluded the videotape, prompting Peavey to appeal and claim, inter alia, that this ruling deprived him of his right to present a defense. The Court of Appeals of Texas correctly found, however that "the fundamental right to present evidence of a defense exists only so long as the evidence is relevant and not excluded by an established evidentiary rule." And, according to the appellate court, the trial court correctly found that the videotape was irrelevant under Texas Rule of Evidence 401 and thus inadmissible under Texas Rule of Evidence 402. Moreover, the court noted that even if the videotape were relevant, it could have been excluded under Texas Rule of Evidence 403 "if its probative value were substantially outweighed by such factors as the danger of unfair prejudice, confusion of the issues, or misleading the jury."
March 5, 2009
Follow My Voice: Seventh Circuit Finds That Voice Authentication Doesn't Need To Be Done By An Expert
The recent opinion of the Seventh Circuit in United States v. Recendiz, 2009 WL 510996 (7th Cir. 2009), makes clear that voice authentication does not need to be done by an expert witness.
In Recendiz, a jury convicted Armando Navar and Marco Thomas of a number of federal crimes related to their participation in a Chicago cocaine distribution network, in which Jesus Herrera also allegedly participated. Navar subsequently appealed, claiming, inter alia, that:
the trial court erred when it permitted DEA Special Agent Tulshi to identify Navar's voice on a recorded conversation between Navar and Herrera. Tulshi testified that on the day of Navar's arrest, he listened to Call No. 331, which was a six-minute conversation in Spanish between Herrera and a man whose voice Tulshi did not yet recognize. Later that day, Tulshi, who speaks Spanish, participated in Navar's arrest and post-arrest interviews and conversed with Navar. Tulshi testified that after hearing Navar speak, he recognized Navar's voice as the second speaker on Call No. 331."
According to Navar, Special Agent Tulshi's lack of training in voice identification should have rendered his testimony inadmissible. The Seventh Circuit disagreed, noting that its conclusion was governed by Federal Rule of Evidence 901(b)(5), which states that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence of:
Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
The Seventh Circuit correctly noted that this Rule does not mention any requirement that such voice identification be done by an expert witness. Indeed, the Seventh Circuit correctly found that the Advisory Committee's Note to Rule 901 states that:
Since aural voice identification is not a subject of expert testimony, the requisite familiarity may be acquired either before or after the particular speaking which is the subject of the identification, in this respect resembling visual identification of a person rather than identification of handwriting.
Accordingly, the Seventh Circuit correctly concluded that "Navar's contention that the court erred in admitting Special Agent Tulshi's identification because he was not qualified as an expert is wholly meritless." Instead,
Special Agent Tulshi properly established the requisite “minimal familiarity” with Navar's voice to permit him to identify it on Call No. 331....Tulshi testified that he listened to a recorded phone conversation between Herrera and another speaker on the same day that he arrested Navar. Later that day, he spoke with Navar during his arrest and post-arrest interview, each of which connected Navar's voice to his identity. Tulshi then testified at trial that based on hearing Navar's voice in person, he recognized it as the same voice he heard on Call No. 331."
March 4, 2009
My New Essay: A Public Privilege
Last December, I posted an entry about the draft of my essay, A Public Privilege, which argues that the Supreme Court of Pennsylvania erred in failing to carve a crime-fraud exception out of its reporter's privilege in Castellani v. Scranton Times, L.P. 2008 WL 4345136 (Pa. 2008). The Yale Law Journal Pocket Part has now published the final version of that essay as part of its Legal Ethics Symposium. You can access the essay by clicking on this link. And what's really cool about the Pocket Part is that they have a podcast version of the essay, which you can hear by clicking on this link. I would like to thank the editors of the Pocket Part for all of their hard work as I think that their suggestions and edits added a lot to the essay.
Badly Preserved?: Court Of Appeals Of Texas Finds Appellant Failed To Preserve Confrontation Clause Issue In Forgery Appeal
I disagree with the conclusion of the Court of Appeals of Texas in its recent opinion in Velu v. State, 2009 WL 471344 (Tex.App.-Waco 2009), that Brinjit Velu did not preserve his Confrontation Clause objection at trial.
In Velu, Brinjit Velu was convicted of forgery based upon different variations of the following facts being presented at trial:
Velu, an Indian national and master's student, met Lizzy Kelly on an internet dating website. Kelly claimed to be a Pennsylvania resident studying in Nigeria. Velu became interested in Kelly. At some point, Velu agreed to cash a check for Kelly and wire her the money. Velu received the cashier's check from Kelly's aunt. In India, cashier's checks are the "most secure financial instruments," so Velu did not suspect that the check might be counterfeit. He took the check to Bank of America, where he maintained an account. The bank accepted the check, but later returned the check with a letter advising Velu that the check was counterfeit. The bank closed Velu's account.
Kelly told Velu that her aunt had stopped payment on the check. Velu believed Kelly and agreed to cash a second check from Kelly's aunt. Kelly instructed Velu to take the check to a check-cashing point and send her the money. Velu took the check to Mr. Payroll, believing that Mr. Payroll was in a better position to verify the check's authenticity and tell him whether the check was "genuine or fake."
Dorothy Johnson received the check from Velu. Johnson noticed that the check contained handwriting instead of machine printing and omitted the payor's telephone number. Velu told Johnson that he was cashing the check for a friend and needed to wire the money. Johnson, aware of a Nigerian check-cashing scam, became suspicious. Upon further questioning, Velu motioned for Johnson to "quiet down." He then told Johnson that an aunt had asked him to cash the check and wire the money to her niece in Nigeria. After contacting the bank, Johnson discovered that the check was counterfeit and contacted police.
Now, I'm not sure that Velu could have been convicted based upon the above facts alone, but his problem was that, as I noted, there were different variations of those facts, with most of those variations coming from Velu himself (A detective also recovered a chat log between Kelly and Velu from his computer in which she told him that the first check was not cancelled).
One of Velu's other problems was that the trial court allowed the prosecution to admit a business records affidavit which was accompanied by one of the counterfeit checks and two letters. In one of the letters, a manager of the credit union from which they check allegedly came stated, "[T]his is not our check, we did not issue this check and will not honor." The letter, however, erroneously stated that the $3,000 check was for $5,000.
Outside the jury's presence, Velu objected to admission of the affidavit:
(1) "It's not made at or near the time of the occurrence; and also, it's swearing to a check that's a 5,000-dollar check and the check in this case is a $3,000-dollar check"; (2) "[I]t's prejudicial and irrelevant"; and (3) "[The manager's] not subject to cross-examination. It's a sworn declaration that she looked at the check, and it's-I can't cross-examine her. I think it's prejudicial against my client. It's misleading to the jury."
The trial court, however, overruled the objections, "noting that the affidavit had been on file for more than fourteen days. See TEX.R.EVID.902(10)."
On appeal, Velu claimed that admission of the affidavit violated the Confrontation Clause because he was unable to cross-examine the affiant regarding the discrepancy in the amount of the check, but the State countered that Velu failed to preserve this claim for appeal. The Court of Appeals of Texas agreed with the State, citing several previous cases for the proposition that "[w]hen a defendant's objection encompasses complaints under both the Texas Rules of Evidence and the Confrontation Clause, the objection is not sufficiently specific to preserve error."
But each of the cited cases dealt with a hearsay objection combined with a Confrontation Clause/cross-examination objection. And those cases make sense to me because hearsay objections frequently involve Confrontation Clause/cross-examination issues, and it makes sense for courts to require litigants to make clear that they are making a Confrontation Clause objection in addition to a hearsay objection.
Conversely, based upon the language cited above, it is clear that the trial court treated Velu's objection as an authentication objection. In overruling Velu's objection, the court did not cite to any hearsay rule but instead cited to TEX.R.EVID.902(10), an authentication rule. Authentication objections frequently do not involve Confrontation Clause/cross-examination issues, so I don't see why the Court of Appeals of Texas found that Velu needed to provide any additional clarification.
March 3, 2009
Signed, Sealed, Delivered: Supreme Court Of Florida Precludes Jury Impeachment In Death Penalty Appeal
The recent opinion of the Supreme Court of Florida in Simpson v. State, 2009 WL 330946 (Fla. 2009), addressed an interesting question with regard to the anti-jury impeachment rule that I have not seen raised before.
In Simpson, Jason Andrew Simpson was convicted of two counts of first-degree murder and given two death sentences based upon the following facts adduced at the guilt phase of his trial:
Simpson went to the home of Archie Crook, Sr. and Kimberly Kimbler in Jacksonville, Florida, armed with an ax. Simpson entered the home, went into the master bedroom where Crook and Kimbler were sleeping, and proceeded to use the ax to hack Crook and Kimbler to death. Simpson inflicted several blows on Crook's face and neck, breaking his jawbone and severing his carotid artery. Simpson struck Kimbler, who was between seven and seven and a half months pregnant, in the back of her arm, shattering the bone. Simpson then inflicted numerous blows on Kimbler's head and neck, ultimately breaking her neck bone.
After the jury returned its guilty verdicts, but before any evidence was presented at the penalty phase of trial, juror Colleen Cody came forward and claimed that "there were some questions that were unanswered before the verdict was made." Defense counsel thereafter moved for a mistrial, and the judge denied the motion but allowed the parties to question Cody. In response to questioning,
Cody expressed that the guilty verdict was not her verdict because some of the other jurors told her to weigh the physical evidence more heavily than the other evidence. Nonetheless, juror Cody confirmed that based upon that weighing process, the jury as a whole reached a unanimous verdict that Simpson was in fact guilty beyond a reasonable doubt."
After this questioning, defense counsel renewed his motion for a mistrial, which the trial court again denied. Then, after the jurors gave Simpson his death sentences, the parties again questioned Cody, but defense counsel was again unsuccessful in having the verdict disturbed.
Simpson's appeal eventually reached the Supreme Court of Florida, which found that its decision was governed by Florida Statutes Section 90.607(2)(b), which states that
Upon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.
It noted that Simpson's argument on appeal was "that the crux of this issue [wa]s whether the commencement of the penalty phase constitutes discharge of the jurors in a death case for the purpose of evaluating whether they may recede from their guilt phase verdicts.". The Florida Supremes, however, noted that the question was not whether the jury had been "discharged" but whether they had delivered a verdict because if they had, Cody's testimony would have been presented as part of the inquiry into the validity of the verdict. And because the jury had rendered guilty verdicts, Cody was not competent to testify, and the trial court acted properly in not disturbing those verdicts.
I think that the court properly interpreted the anti-jury impeachment rule, but seeing jurors precluded from impeaching their verdicts when the defendant has been sentenced to die still strikes me as troubling.
March 2, 2009
My New Article: Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense
Readers of this blog know that I have covered a number of cases over the last year and a half where courts have applied the anti-jury impeachment rule to preclude jurors from impeaching their verdicts after trial through allegations of racial, religious, or other bias. Some of these posts can be found here, here, here, here, here, here, and here. Well, I have finally completed my article, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense. The article argues that court applying Rule 606(b) to preclude allegations of juror bias violate criminal defendants' right to present a defense. Here is the abstract for the article:
It is well established that the presence of a biased juror is a structural defect not subject to a harmless error analysis; however, courts repeatedly have precluded criminal defendants from proving such bias by applying Rule of Evidence 606(b) to prevent jurors from impeaching their verdicts through allegations of racial, religious, or other prejudice by jurors. Court also routinely have held that application of the Rule in such cases does not violate the Sixth Amendment right to an impartial jury based upon the Supreme Court’s conclusion in Tanner v. United States that the Rule did not violate the right to a competent jury.
Criminal defendants, however, should be able to rely upon another Sixth Amendment right to allow them to present post-trial juror testimony regarding racial, religious, or other bias by jurors. Since its 1967 opinion in Washington v. Texas, the Supreme Court has declared that the Compulsory Process Clause renders unto criminal defendants the “right to present a defense” and has found that courts violate this right by applying rules of evidence in a manner that is arbitrary or disproportionate to the purposes that they were designed to serve. This article argues that when courts preclude jurors from impeaching their verdicts through evidence of juror racial, religious, or other bias, they apply Rule 606(b) in a way that is arbitrary and disproportionate to the purposes that the Rule is designed to serve and thus violate criminal defendants’ right to present a defense."
You can download a copy of the article from SSRN with a free subscription. If any readers of the blog get the chance to read it and would like to share any comments/suggestions, I would greatly appreciate it.
March 1, 2009
Don't Rock The Boat: Iowa Appeal Reveals Differences Between Iowa And Federal Rule 407
The recent opinion of the Court of Appeals of Iowa in Scott v. Dutton-Lainson Co., 2009 WL 398488 (Iowa App. 2009), reveals that there are significant differences between Federal Rule of Evidence 407 and Iowa Rule of Evidence 5.407.
In Scott, Stephen Scott, the manager of a boat dealership, was injured when the swivel jack on a boat trailer collapsed as he attempted to move the boat and trailer, with the tongue of the trailer landing on his foot. He thereafter sued the trailer manufacturer and the trailer jack manufacturer, Dutton-Lainson, alleging, inter alia, that the jack failed due to defects in its design and manufacture The trial court, however, precluded Scott from presenting certain evidence, such as evidence that Dutton-Lainson modified the pin of the swivel jack following his injury. After the jury returned a verdict in favor of Dutton-Lainson, Scott appealed, claiming, inter alia, that the trial court improperly precluded the jack modification evidence
The Court of Appeals of Iowa noted that the admissibility of this evidence was governed by Iowa Rule of Evidence 5.407, which states that:
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 rule does not require the exclusion of evidence of subsequent measures when offered in connection with a claim based on strict liability in tort or breach of warranty or for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
This rule is thus significantly different from its federal counterpart, Federal Rule of Evidence 407, which states that:
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule 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.
As the Court of Appeals of Iowa noted, these are not merely superficial differences. Instead, the official comment to Iowa Rule of Evidence 5.407 states that:
The Rule excluding evidence of subsequent repairs originally rested on the notion that such repairs were irrelevant, or had little probative value, to the issue of the defendant's antecedent negligence. More recently, Courts and legislatures have frequently retained the exclusionary rule in negligence cases as a matter of "public policy," reasoning that the exclusion of such evidence may be necessary to avoid deterring individuals from making improvements or repairs after an accident. However, when the context is transformed from a typical negligence setting to the modern products liability field, the "public policy" assumptions justifying this exclusionary rule are no longer valid. This is because it is unrealistic to suggest that the contemporary corporate mass producer of goods, the normal products liability defendant, who manufactures tens of thousands of units of goods, will forego making improvements in its product, and risk enumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of adoption of such improvements may be admitted in an action founded on strict liability or breach of warranty for recovery on an injury that preceded the improvement....
Courts that have held Federal Rule of Evidence 407 or a similar state statute inapplicable in products liability actions have generally noted that a products liability case looks to, or emphasizes a defect in the product, rather than any conduct or culpable act on behalf of the manufacturer....
Therefore, it is the Committee's position that relevant evidence should not be excluded from a products liability case by an obsolete evidentiary rule when modern legal theories, accompanied by economic and political pressures, will achieve the desired policy goals.
Applying this reasoning, the court thus found that because the design defect case before it "'emphasize[d] a defect in the product, rather than any conduct or culpable act on behalf of the manufacturer,'" the trial court should not have used Rule 5.407 to exclude Scott's evidence and thus reversed. I'm not sure yet where I fall on this subsequent remedial measure debate, but this opinion certainly gives me some food for thought.