EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, January 31, 2018

Are Subsequent Remedial Measures Admissible at Criminal Trials?

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier 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 or its design; or
  • a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

It is well established that Rule 407 applies in civil cases, like tort and nuisance cases. But does the Rule apply in criminal cases? This was the question addressed by the United States District Court for the Northern District of California in United States v. Pacific Gas and Electric Company, 178 F.Supp.3d 927 (N.D.Cal. 2016).

In the case,

On September 9, 2010, a gas line owned and operated by PG&E ruptured, causing significant damage to a residential community in San Bruno, California. Superseding Indictment...PG&E st[ood] charged with one count of obstructing the National Transportation Safety Board (“NTSB”) investigation that followed the San Bruno explosion....PG&E [wa]s also charged with 12 counts of violating the minimum federal safety standards for the transportation of natural gas by pipeline...Congress criminalized “knowing and willful” violations of these minimum standards.

Before trial, PG&E filed a motion in limine seeking "to exclude eleven categories of 'evidence and argument relating to PG&E's safety improvements after the San Bruno accident' and 'any PG&E statements of remorse and empathy after the San Bruno accident, recognition of areas needing improvement, and descriptions of the improvement measures."

In response, the government cited some persuasive authority that Rule 407 does not apply in criminal cases:

See, e.g., United States v. Wittig, 425 F.Supp.2d 1196, 1233 (D.Kan. 2006), rev'd on other grounds, 472 F.3d 1247 (10th Cir. 2007) (“Defendants' reliance on Rule 407 of the Federal Rules of Evidence is misplaced, for it applies only to civil cases.”); United States v. Gallagher, No. 89-00272-03, 1990 WL 52722, at *1 (E.D.Pa.1990) ("The court concludes that Rule 407 does not apply to criminal cases, and that even if it did, it would not apply to the facts of this case.").

That said, the court found no binding authority in the Ninth Circuit. 

Without any such authority, the Court agree[d] with PG&E that the purpose of Rule 407—“to encourage tortfeasors to remedy hazardous conditions without fear that subsequent measures will be used as evidence against them”—applies with equal force to civil and criminal cases. Though this harm-reduction objective may more often find application in civil cases, "neither harm nor injury are exclusively civil matters."...And this is certainly a criminal case where harm-reduction can and should be a goal, as indicated by the Pipeline Safety Act itself. The Court therefore f[ound] that Rule 407's bar of subsequent remedial measures can apply to criminal cases and may apply to this one.




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Seems to me that the court was right with regard to the SRMs. But what about the expressions of remorse and the identification of deficiencies? Those aren't SRMs and seem to be clearly admissible statements of an opposing party. How did the court rule on those issues?

Posted by: Fred Moss | Feb 1, 2018 1:58:20 PM

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