EvidenceProf Blog

I Keep Forgetting: 6th Circuit Finds Forgetfulness is Not a Character Trait for Rule 404 Purposes

Federal Rule of Evidence 404(a)(1) provides that "[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." So, is forgetfulness a character trait is covered by Rule 404(a)? According to the recent opinion of the Sixth Circuit in United States v. Nixon, 694 F.3d 623 (6th Cir. 2012), the answer is "no."

In Nixon, Ronda Nixon was charged with wire fraud, bank fraud, aggravated identity theft, and using an unauthorized access device. These alleged crimes involved Nixon's use of a credit card belonging to Pruitt & Thorner Law Offices, and,

At trial, Nixon testified that [Garis] Pruitt had authorized several of her personal charges on the firm's American Express credit card and on the line of credit with American Express Bank, but that he had forgotten that he had done so as a result of his advanced age and his health issues. As support for her defense, Nixon offered the testimony of Michael Curtis, an attorney and longtime colleague of Pruitt. She claims that Curtis would have testified that Pruitt forgot Curtis's name at a deposition unrelated to this case that occurred a short time before Nixon's trial.

After she was convicted, Nixon appealed, claiming, inter alia, that the district court erred in deeming this evidence inadmissible because it qualified for admission under Federal Rule of Evidence 404(a)(2)(B), which, notwithstanding Federal Rule of Evidence 404(a)(1), allows a defendant to introduce evidence of a pertinent character trait of the alleged victim. 

The government claimed that this issue was unpreserved for appeal, but the Sixth Circuit found that preservation didn't matter because the evidence was inadmissible. According to the court,

We disagree with both the district court's conclusion and the parties' assertion that forgetfulness is a character trait. Although this court has never ruled on the issue, other circuits have determined that the term "character trait" does not encompass a witness's memory or mental capacity. See United States v. Cortez, 935 F.2d 135, 138–39 n. 3 (8th Cir.1991) ("We do not believe that Rule 404(a)(1) encompasses slowness to answer, forgetfulness, or poor ability to express oneself...."); see also United States v. West, 670 F.2d 675, 682 (7th Cir.1982) (noting that although Rule 404(a)(1) does not define the term "character trait," the term more properly references "elements of one's disposition, such as honesty, temperance, or peacefulness," rather than one's "intelligence" (internal quotation marks omitted)), overruled on other grounds by United States v. Green, 258 F.3d 683 (7th Cir.2001). We find our sister circuits' analysis on this issue persuasive, and thus conclude that forgetfulness is not a character trait.

That said, the Sixth Circuit still agreed with the district court's decision to exclude the evidence because 

the quality of Pruitt's memory at or around the time that Nixon made the transactions (March to June 2007) was certainly a fact of consequence. But Curtis could testify as to Pruitt's memory only in the time period immediately before Nixon's trial (May 2010), nearly three years after the last transaction was made. In addition, Curtis's proposed testimony was not going to show a pattern of Pruitt's forgetfulness, but only that Pruitt had a single memory lapse that was unrelated to any financial or business transaction. Accordingly, we conclude that Curtis's testimony about an isolated incident three years after the time period at issue was irrelevant. The district court, therefore, did not err in excluding the testimony.

(The court also found that extrinsic evidence of Pruitt forgetting Nixon's name was inadmissible under Federal Rule of Evidence 608(b)).

-CM

Am I Right Or Am I Right?: Supreme Court of West Virginia Finds Evidence of Insurance Inadmissible to Prove Handling of Claim

Similar to its federal counterpart, West Virginia Rule of Evidence 411 provides that

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, if controverted, or bias or prejudice of a witness.

If you're looking for a pretty good case explaining the goals of Rule  411 and its application, you need look no further than the recent opinion of the Supreme Court of West Virginia in Toothman v. Jones, 2012 WL 5687865 (W.Va. 2012).

The action in Toothman was

based upon injuries allegedly suffered by the Petitioner, Bonnie Toothman, in an automobile accident occurring on June 7, 2006, in which the Respondent's car struck the Petitioner's car. Petitioners Mr. and Mrs. Toothman thereafter filed a civil action, alleging that Petitioner Mrs. Toothman had suffered cervical strain and other medical injuries due to the accident. A trial was conducted on January 11, 2011, and the jury returned a verdict awarding special damages of $5,972.35, an amount $600.00 less than the medical expenses submitted by the Petitioners. The jury did not award any general damages. Subsequent to the Petitioners' request for a new trial, the lower court denied the new trial but ordered an additur of $2,000.00 for past pain and suffering.

The petitioners thereafter appealed the denial of their motion for a new trial, claiming, inter alia, that the trial court erred in preventing reference to the Respondent's insurance coverage. Specifically, they asserted

that they sought to raise the issue of insurance to explain that the insurance company was handling the claim on behalf of the Respondent. The Petitioners also contend[ed] that the gaps in Petitioner Mrs. Toothman's medical treatment subsequent to the accident could have been explained more fully to the jury if she had been permitted to explain that funding through the Respondent's insurance company had become an issue.

In addressing these arguments, the Supreme Court of West Virginia cited its prior opinion in Reed v. Wimmer, 465 S.E.2d 199 (W.Va. 1995), for the proposition that

The prohibition in Rule  411 is based on the assumption that jurors who are informed about the insurance status of a party may find that party liable only because the liability will be cost-free to the party, or that jurors will increase the amount of damages in that only an insurance company will be affected adversely. By the adoption of this exclusionary language, Rule  4111 forbids two inferences. First, the Rule does not permit the trier of fact to infer that an insured person is more likely than an uninsured person to be careless. Second, Rule  4111 rejects the inference that the foresight to take out insurance is indicative of a responsible attitude, making negligence less likely. Although both the inferences and their probative force are highly questionable, under the West Virginia Rules of Evidence, the doctrine is clear, and compliance with Rule  411 and the other rules discussed in this opinion is not a matter of judicial discretion.

Applying this reasoning, the court then concluded that

While not all uses of evidence regarding the existence of insurance are excluded by Rule  411, a decision regarding the appropriate circumstances for the potential introduction of insurance evidence must be made by the trial court and properly lies within the trial court's discretion. As with introduction of evidence generally, the trial judge must engage in an evaluation of the evidence offered and ultimately determine whether the evidence is relevant and whether its probative value is outweighed by its prejudicial effect. See W. Va. R. Evid. 403. In the present case, the Petitioners presented the trial court with an insufficient basis for permitting the introduction of evidence of the existence of the Respondent's insurance. The trial court did not abuse its discretion in failing to permit introduction of evidence regarding insurance and in denying the Petitioners' motion for a new trial. As the trial court aptly observed, there is "no reason to change the longstanding evidentiary rule prohibiting the introduction of a defendant's insurance coverage into evidence at trial...." 

-CM

Am I Right?: Eastern District of Michigan Finds Rule 410 Doesn't Contain a Constitutionally Protected Right

Federal Rule of Evidence 410 states:

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

In its recent opinion in Dozier v. Booker, 2013 WL 184000 (E.D.Mich. 2013), the United States District Court for the Eastern District of Michigan held that "nothing in the text of Federal Rule of Evidence 410 or its Michigan analogue even alludes to a constitutionally protected right." But was the court right?

Well, I guess in a certain sense, the court was right. Rule 410 certainly does not use the word "right," and the Rule simply speaks to the (in)admissibility of certain evidence and not to a right to have such evidence excluded. On the other hand, doesn't it make sense to look at the Supreme Court's most thorough discussion of the Rule, which is in United States v. Mezzanatto?

In Mezzanatto, the Court had to decide whether to enforce a waiver under which a defendant waived the protections of Rule 410 to get to the plea bargaining table, such that his statements made during plea negotiations would be admissible to impeach him should his case proceed to trial. The Ninth Circuit had found that such a waiver was unenforceable, but the Supreme Court disagreed, finding, inter alia, that

Respondent also goes to great lengths to establish a proposition that is not at issue in this case: that the plea statement Rules do not contain a blanket "impeachment" exception. We certainly agree that the Rules give a defendant the right not to be impeached by statements made during plea discussions, but that conclusion says nothing about whether the defendant may relinquish that right by voluntary agreement.

Now, this discussion is merely contained in a footnote, and the Court expressly states that the proposition "is not at issue in the case," making its conclusion dicta. That said, the Court pretty plainly construes Rule 410 as creating a right, albeit one that can be relinquished by voluntary agreement.

So, what's the relevance of this issue? In Booker, the petition brought a habeas action, claiming that the Michigan state courts erred by admitting statements that he made in violation of Rule 410. The Eastern District of Michigan, however, found that because Rule 410 does not contain a constitutionally protected right, "[p]etitioner would not be entitled to habeas relief merely because the admission of his statement violated M.R.E. 410."

-CM

For Your Eyes Only: NJ Court Notes That Documents Prepared for Settlement Negotiations are Inadmissible

Federal Rule of Evidence 408 provides that

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

So, under Federal Rule of Evidence 408(a), evidence relating to settlement negotiations is generally inadmissible, and, as the recent opinion of the United States District Court for the District of New Jersey in Alves v. Main, 2012 WL 6043272 (D.N.J. 2012), makes clear, this includes documents prepared for such negotiations.

In Main, the plaintiffs were convicted sex offenders who have completed prison sentences but remain involuntarily confined pursuant to the New Jersey Sexually Violent Predator Act ("NJSVPA"), which authorizes the indefinite civil commitment of any individual determined to be a "sexually violent predator." The plaintiffs claimed, inter alia, that the various defendants failed to provide them with adequate mental health treatment required by federal and state law.

In 2008, after the parties had reached an impasse over what would constitute adequate mental health treatment at the [New Jersey's Special Treatment Unit (STU)], the parties agreed upon the utilization of a joint neutral expert, Judith Becker, Ph.D., who was selected by Plaintiffs' pro bono counsel and Defendants....The concept was that Dr. Becker would review the existing STU treatment program, offer her opinion on the program, and produce a report, which would be considered solely for purposes of breaking the stalemate in settlement discussions. On December 29, 2008, Dr. Becker issued her report.

The parties thereafter reached a settlement and filed a joint motion for final approvement of that settlement. Other objectors, however, asked that the settlement not be approved so that the case could proceed to trial. Specifically, according to the court,

some objectors still seem to think that liability can be easily established in light of the Becker Report, which they contend is the report of the State's "own expert." This oversimplifies the liability issue in the case and ignores that the Becker Report does not utilize the Youngberg standard, wholly apart from the fact that there are serious issues regarding whether the Becker Report would even be admissible at a trial.[FN31]

FN31. There is some disagreement among the parties as to whether Dr. Becker's report was to be considered for settlement purposes only pursuant to Federal Rule of Evidence 408. The relevant procedural history suggests that the Becker Report was for settlement purposes only and would not be properly admissible at trial.

In part because of this issue, the court approved the settlement.

-CM

Formula 409: Illinois Court Applies Rule 409 to Medical Offer That Took Place Before Rule Took Effect

Federal Rule of Evidence 409 and its state counterparts have to be among the least cited rules of evidence. Rule 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.

I think that there are two primary reasons why this rule isn't cited very often. First, I would guess that offers to pay medical expenses are pretty rare. Second, because the language of the rule is so clear, I doubt that many litigants try to introduce evidence relating to an offer to pay medical expenses. But, with the recent enactment of the first Illinois Rules of Evidence, we can have a case like Lambert v. Coonrod, 966 N.E.2d 583 (Ill.App. 4 Dist. 2012).

In Coonrod, 

In August 2009, Richard [Lambert] filed a complaint in negligence against [Tim] Coonrod after an October 2008 fall with injury on Coonrod's property. Richard alleged he was helping Coonrod with a project that required him to reach for a light above him. While mounting a coil spool, Richard fell backward and landed on the spool. Richard alleged Coonrod failed to provide a safe and stable platform from which he could work and failed to warn him that the spool he stood upon was or could be unstable and easily tipped. Richard alleged he sustained injuries to his left side and back, including a lumbar fracture and broken rib. In October 2009, Coonrod filed his answer and asserted the affirmative defense of contributory negligence.

Thereafter,

In February 2011, Coonrod filed a motion in limine. In part, Coonrod asked the trial court to bar plaintiffs from referencing or suggesting to the jury that Coonrod offered to pay Richard's medical expenses....Plaintiffs objected, claiming Coonrod made a statement to Billie Jo that he was sorry about the incident and would take care of the expenses. Plaintiffs argued evidence of a defendant's offer or payment of a portion of a plaintiff's expenses is admissible as a statement inconsistent with the party's position at trial, where it was not part of any settlement negotiation or offer of compromise. The court found Coonrod's statement that he was sorry about the incident was admissible but testimony about payment of medical expenses was not.

At the close of trial, the jury found for Coonrod and against the plaintiffs. The plaintiffs thereafter appealed, claiming, inter alia, that the trial court erred in deeming the offer to pay medical expenses inadmissible.

The appellate court disagreed, concluding that the offer was inadmissible pursuant to Illinois Rule of Evidence 409, which provides that

In addition to the provisions of section 8–1901 of the Code of Civil Procedure (735 ILCS 5/8–1901), 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.

In response, the plaintiffs claimed that the offer to pay medical expenses occurred before the adoption of Illinois Rule of Evidence 409. The court, however, found this fact to be irrelevant, concluding that

The supreme court stated the rules became effective on January 1, 2011, and nowhere did the court state that they did not apply to cases that were pending but had not yet gone to trial. Moreover, a change in a rule affecting matters of procedure, such as a rule of evidence, and not substantive rights, applies retroactively to pending cases....Rule 409 involves matters of evidence, a procedural issue, and thus the rule applied here since plaintiffs' trial took place after the rule's effective date.

-CM