judge's own background and personal experience; they may come from logic, commonsense or intuition. As Justice Holmes once said, "The life of the law has not been logic: it has been experience.'

99 100

Rule 402 codifies the fundamental principle of evidence law that all relevant evidence is admissible, unless exluded by some provision which qualifies Rule 401, and that irrelevant evidence is not admissible.

As proposed by the Advisory Committee, Rule 402 provided that all relevant evidence was admissible, "except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules adopted by the Supreme Court." 101 The House Committee felt that it should not appear that Congress acquiesced in the Advisory Committee's implicit policy statement that the Supreme Court had authority under the existing Rules Enabling Acts to promulgate Rules of Evidence." The Committee therefore amended the Advisory Committee's exception by adding "or by other rules prescribed by the Supreme Court pursuant to statutory authority" to the Advisory Committee's exceptions.

102

Rule 403 is one of the broadest provisions qualifying Rule 401 and providing for the exclusion of relevant evidence. The Rule as proposed by the Advisory Committee, and adopted without significant change by the House Committee, provides that:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." (Italics added)

The position taken in Rule 403 is well established and leaves great discretionary power in the hands of the trial judge to balance the probative value of, and need for, the evidence against the enumerated dangers and considerations. 103

Rule 403 Rule does not present significant theoretical or conceptual difficulties it merely codifies traditional concessions to the human limitations of jurors and recognizes that mortal time is finite. The evidence's probative value must be "substantially" outweighed by its disadvantages. Use of that term was intended to strike a reasonable balance between practical necessities and fairness to the litigants. Volumes might be written on each of the enumerated "dangers" and "considerations," but it is sufficient to note that, though the terms may seen ambiguous, their practical application should not prove difficult.

It must, however, be noted that "unfair surprise" is not among the enumerated grounds for exclusion of relevant evidence.104 "Unfair surprise" appears as a ground for exclusion of relevant evidence in the Uniform Rules of Evidence and in some other evidence codes;105 however, it is not generally accepted as a ground for excluding relevant evidence unless "coupled with the danger of prejudice and the confusion of issues." 106 Both the Advisory Committee and the House Committee apparently felt that the Rule as written was adequate to protect parties who are unfairly surprised.

Rules 404-405: Admissibility and methods of proving "character"

With Rule 404 the "specific half" of Article IV begins. Rules 401-403 set out the basic definitions and rules for admitting or excluding evidence; Rules 404-411 deal with specific problems of admitting and excluding circumstantial evidence. Rule 404(a) provides that, in general, evidence of a person's character traits are not admissible to prove probable action in conformity with those traits on a particular occasion or in a particular instance. It must be emphasized that this Rule does not apply when character is one of the ultimate issues in the case (e.g., in tort suits where it is alleged that the defendant hired an "incompetent" agent, or in certain defamation actions).107 There are, however, exceptions to Rule 404 (a)'s general principle of inadmissibility.

Rule 404(a)(1) provides that a defendant in a criminal proceeding may introduce evidence of his good character to show his innocence of the alleged crime if the character trait is "pertinent", that is, if actions in conformity with the trait would tend to exculpate the defendant. The rationale for this exception is that since property, liberty, and perhaps life, are at stake in such proceedings, defendants should be given every opportunity to introduce evidence which tends to show that they are not guilty of the crimes charged.10

108

However, the Rule is not one sided in favor of the criminal defendant; if a defendant introduces evidence of his good character to show the likelihood of

his innocence if it is well established that the prosecution has the right to introduce evidence of the defendant's bad character to rebut the defendant's evidence by showing the likelihood of his guilt.109 The rationale for not allowing the prosecution to initiate the introduction of evidence concerning a defendant's character, but to allow the state to rebut the defendant's evidence, is that such evidence is of only marginal relevance, and the introduction thereof creates the serious risk that a jury may convict the defendant because he is a "bad person" not because he is guilty of the crime charged. If, however, the defendant has "opened the door" to such issues, he has traditionally been thought to have assumed this risk.110

The second major exception to the general rule excluding evidence of character to show conduct is analogous to the previous exception; Rule 404(a)(2) allows a criminal defendant to introduce evidence of the character of his alleged victim where the victim's conduct in conformity with the victim's character would tend to prove the innocence of the accused. (E.g., the violent character of the victim of a homicide or battery.) Here again, the rationale is that the character of the victim is circumstantial evidence of the defendant's innocence, and he should not be deprived of the opportunity to prove that he was not guilty of the crime charged. Of course, once the defendant has introduced evidence of his alleged victim's bad character, the prosecution may again rebut such evidence with a showing of the victim's good character."1

111

Rule 404 (a) (2) also codifies a minority position which allows the prosecution in a self defense case to counter the defendant's evidence of the violent character of the deceased in a homicide case, with evidence of the defendant's violent character. The theory behind this Rule is that the issue is which of the two, the defendant or the victim, had started the fight; to this issue the defendant had "opened the door." 112

Rule 404(a)(3) allows evidence of witnesses' character as provided in Rules 607, 608 and 609 of the Code.

Rule 404(b) provides that, although evidence of other crimes, wrongs or acts is not admissible to prove the character of a person for the purpose of showing that he acted in conformity therewith on a particular occasion, "[e]vidence of other crimes, wrongs, or acts" may be admissible when offered "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." 113 This last provision does not represent an exception to the general rule excluding character evidence to prove probable conduct. Evidence of specific prior "bad acts" is not admissible to prove character; it may be used only for impeachment (see Article VI) and to prove facts other than character. The House Committee changed the Advisory Committee's language from "does not exclude" to "may, however, be admissible." The House Committee thought that its formulation more properly placed emphasis on admissibility than did the final Advisory Committee proposal."

114

After it has been established that proof of character is proper under Rule 404, it is necessary to determine what means or method of making the character proof are acceptable; Rule 405(a) defines these means and methods. There are essentially three methods of proving character: first, proof of specific acts of the person in question as demonstrating his character; second, testimony by witnesses who knew the person in question as to their opinions about his character; and third, testimony by witnesses as to the person in question's general reputation in his community.

When character is directly in issue, almost all courts will admit evidence of specific acts to show character. Some courts also admit reputation evidence and a very few admit personal opinion testimony.

Rule 405(b) provides that, in cases where a person's character trait is an essential element of the charge, claim or defense, proof of conduct through evidence of specific acts is permitted.

When character evidence is used to prove probable conduct, the generally prevailing view is that only reputation evidence is admissible to show the character of either the defendant or his alleged victim.

Rule 405 (a) of the Federal Evidence Code as proposed by the Advisory Committee provided that "Reputation or Opinion" evidence of character traits was admissible in all cases where evidence of character was proper." 115 The House Committee deleted the provision of Rule 405 (a) which had allowed evidence of character traits to be introduced through opinion testimony. The House

116

Committee feared that such wholesale allowance of opinion testimony "might tend to turn a trial into a swearing contest between conflicting character witnesses... ;" 117 the Committee also similarly changed Rule 608.

118

Despite these changes by the House Committee, Representative Mayne successfully moved the entire House to restore the Advisory Committe's language.' Thus, as sent to the Senate, Rules 405 and 608 provide for proof of character by both reputation and opinion. It should also be noted that opinion evidence from both lay witnesses (based on personal knowledge) and expert witnesses (based on examination and testing) is admissible. Prior law did not, in general, allow such expert testimony.

Rule 405 (a) also allows cross-examination of a "reputation witness' concerning "relevant specific instances of conduct." This is a slight expansion of the majority position which allows cross-examination as to whether the reputation witness has heard of particular instances of conduct pertinent to the character trait in question.

Rule 406: Habit and routine practice

119

Rule 406 deals with the admissibility of "habit evidence." Habit is ususally thought to describe one's regular response to a specific set of circumstances. Character describes one's usual disposition with respect to general traits." Since habits are more specific and particularized than character, evidence of habit is relevant and can be introduced in circumstances when it is not permissible to introduce evidence of character. The rationale for the less restrictive use of habit testimony, when compared to character evidence, is obviously higher likelihood that actions on a particular occasion will conform with habit than with general character traits.

Despite the somewhat higher reliability of habit evidence over character evidence, many states either do not admit evidence of habit to prove actions conforming to habit, or limit admissibility of habit evidence to those situations where there are no eye witnesses. Rule 406 abandons the "no eye witness" rule. Under the Rule, evidence of personal habits or the routine practices of an organization is relevant to prove conduct conforming to the habit.

Rule 406, as drafted by the Advisory Committee, also provided that proof of such habit or routine practice might be made by either opinion testimony, or by proof of specific instances of conduct (assuming that the number of instances was sufficient to warrant a finding that the habit existed or that the practice was routine).120 The House Committee totally deleted the second part of Rule 406 which dealt with "method of proof." 121 The Committee did not intend "that its action be construed as sanctioning a general authorization of opinion evidence in this area." but, rather, believed that "the method of proof of habit and routine practice should be left to the courts to deal with on a case-by-case basis." 122

Rule 407: Subsequent remedial measures

Rule 407 of the Proposed Evidence Code deals with the specific question of whether evidence of "Subsequent Remedial Measures" should be admitted. Generally, evidence of repairs or other precautionary measures made following an accident is inadmissible to prove negligence.12 Rule 407 of the Proposed Federal Evidence Code incorporates this generally accepted rule. The rationale for this rule is usually couched in relevance terms; that is, making subsequent repairs merely provides additional safety. Therefore, since the evidence does not prove what it is intended to prove (negligence), it is irrelevant.14 Though the relevance argument is most widely advanced by the courts, it is probable that the real rationale is that the possible relevancy of such evidence is outweighed by the public policy of encouraging people to make repairs after an accident.1

125

It should be noted that the Rule specifically states that, though evidence of subsequent remedial measures may not be admissible to prove negligence or "culpable conduct," the Rule does not require the exclusion of such evidence when offered for another purpose. Thus, such evidence may still be admissible to rebut an allegation that the defendant for some reason could not have taken the precautions suggested by the plaintiff; the evidence would also be admissible to prove such things as ownership or control, or that the repair was made for the purpose of destroying evidence. As always, evidence of

subsequent remedial measures may be used in proper circumstances for impeachment (see Article VI).

126

Rule 408: Compromise and offers to compromise

Rule 408, which provoked some conflict between the Advisory Committee and the House Committee, deals with the question of "Compromise and Offers to Compromise." As a general rule, offers to compromise or to discount claims are inadmissible to prove either the validity or invalidity of a claim.127 Several theories have been advanced in support of this rule.128 Courts often say that such evidence is simply irrelevant. These courts base their reasoning on the theory that the compromise offer is simply an attempt to avoid a lawsuit. However, this theory is not altogether sound, since a compromise offer, especially where the compromise offer would provide for the payment of a large fraction of the claim, may well assist the fact finder in reaching the valid conclusion that the defendant believes the claim is likely to be successful. Another theory that has been advanced to support the exclusion of this type of evidence is that the negotiations rest on an express or implied contract between the parties that the negotiations are to be without prejudice to their positions.129 Unless one is enamored of Lockean notions of implied, though fictional, contracts, such a position is difficult to defend.

The strongest reason for excluding evidence of such offers is the public policy favoring settlement of disputes without litigation. It should be apparent to even the most casual observer that such settlements would be discouraged if either side were deterred from engaging in frank discussions and making bona fide offers for fear their negotiations would be admitted into evidence.

Despite the general rule, some courts have taken the position that any direct admission of liability made during the course of negotiations is admissible even if the offer to compromise is itself not admissible."

130

Rule 408, as drafted by the Advisory Committee, made the general exclusionary rule absolute; no exceptions (whether for express admissions of liability or any thinything else) were provided for. The Rule did not require exclusion when the evidence was offered for a purpose other than proving liability or the invalidity of a claim (such as proving bias or prejudice); however, it did provide for the exclusion of all evidence of liability for, or invalidity of, a claim; even direct admissions of liability, derived from compromise offers and other negotiations between the parties were excluded.131 The Advisory Committee felt that the blanket exclusion of evidence derived from compromise offers and negotiations would further the public policy in favor of the non-judicial resolution of controversies.

The House Committee, however, did not agree with the Advisory Committee's judgment. The House Committee noted that, under existing federal law, evidence derived from compromise offers and negotiations is admissible in subsequent litigation between the parties. Rule 408, as drafted by the Advisory Committee, would have reversed that doctrine because the Rule was drafted as an absolute prohibition of the use of such evidence at any time ("Evidence of conduct or statements made in compromise negotiations is . . . not admissible."). The House Committee could see no salutary effect to such a policy.13

In addition, The House Committee noted that some government agencies had expressed the view that the Advisory Committee formulation of Rule 408 was likely to impede rather than to assist settlement efforts. It is not always easy to determine when "compromise negotiations" have begun and "informal dealings" have ended. Additionally, governmental agencies observed that parties dealing with such agencies might well be reluctant to furnish factual information at preliminary meetings when they could wait until the 'compromise negotiations' began and thus hopefully effect an immunity for themselves with respect to the evidence supplied." 133

66

Therefore, the Committee redrafted Rule 408 so that admissions of liability or opinions given during compromise negotiations continue to be inadmissible ("Evidence of admissions of liability or opinions given during compromise negotiations is . . . not admissible."), but evidence of unqualified factual assertions made during such negotiations are admissible ("Evidence of facts disclosed during compromise negotiations, however, is not inadmissible by virtue of having been first disclosed in those negotiations."). The House Committee Report also state: 135

134

"The Committee intends no modification of current law whereby a party may protect himself from future use of his statements by couching them in hypothetical conditional form."

Rule 409: Payment of medical and similar expenses

Rule 409, entitled "Payment Of Medical And Similiar Expenses," provides that evidence of such payment is inadmissible to prove liability for the injury. This rule is based upon the same extrinstic policies which prompted the inclusion of Rule 407, subsequent remedial measures, and Rule 408, compromise offers.136 The Rule, as drafted by the Advisory Committee, codifies the position of the vast majority of American courts. The rationale for the Rule most often given is that such payment or offer to pay is usually made from humane impulses and not from a feeling of guilt, and that to hold otherwise would tend to discourage such assistance. 137

It should be noted that Rule 409 does not exclude evidence of conduct or statements not a part of the act of furnishing or offering, or promising to pay medical and similar expenses. Since the Rule codifies the majority position is founded on firm public policy, the House Committee did not make any modifications in the Rule as proposed by the Advisory Committee.

Rule 410: Offer to plead guilty; nolo contendere; withdrawn plea of guilty

Rule 410 deals with withdrawn pleas of guilty, please of nolo contendere. An offer to plead guilty or a plea of guilty which is later withdrawn is a type of admission, and would, therefore, ordinarily be admissible. However, extrinsic policy considerations often require the exclusion of such evidence. Most courts do not allow a withdrawn guilty plea to be admitted in a later criminal trial for the same offense.138 The possible evidentiary value of such admissions is thought by a majority of American courts to be offset by the prejudicial effect of such evidence. Moreover, it is often stated that the judge who allowed the guilty plea to be withdrawn must have decided that there was good reason for its withdrawal, but that a jury would be unlikely to give as much weight to the reason for the withdrawal as to the plea.139

Offers to plead guilty are sometimes treated as implied admissions of guilt, but the majority of American courts are said to exclude such offers on the same reasoning as that advanced for not admitting offers to compromise as proof of liability in civil cases.140 Rule 410 of the Proposed Federal Evidence Code codifies the generally accepted view of the majority of American courts.141 Evidence of nolo contendere pleas is excluded to preserve the fundamental characteristic of such pleas."

142

The House Committee made only one minor modification in Rule 410 as proposed by the Advisory Committee. The House Committee added the phrase "except as otherwise provided by act of Congress" to the draft proposed by the Advisory Committee. This addition was made to preserve particular congressional policy judgments, present or future, as to the effect of a plea of guilty or nolo contendere.145

Rule 411: Liability insurance

Rule 411, entitled "Liability Insurance," also codifies a generally accepted position of American courts; proof that either party carried liability insurance is inadmissible to prove negligence or other wrongdoing. The rationale for this rule is that such evidence is only marginally relevant, and that the introduction of such evidence may be highly prejudicial; the jury might be influenced by the fact that the insurance company rather than the individual defendant would have to pay any judgment. Furthermore, admission of such evidence might discourage persons from carrying such liability insurance.14

144

It should be noted that evidence of liability insurance may enter the proceedings by other means. Both the general common law position and Rule 411 prohibit admission of such evidence only on the issue of a party's negligence or otherwise wrongful conduct. If the evidence is offered for another purpose, such as proof of agency, ownership, control, bias or prejudice, the evidence may be admitted."

145

Two other problems should also be noted: first, an admission of liability may be so entertwined with the reference to insurance coverage that the reference to insurance cannot be served from the admission of liability (i.e.,