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Rule 407 of the Federal Rules of Evidence, the “Subsequent Remedial Measures” Rule, is troubling. This exclusionary rule of evidence prohibits using subsequent remedial measures to demonstrate negligence, culpable conduct, or product defect. But, other than in the title of the rule, the phrase “subsequent remedial measures” does not appear anywhere in the rule’s text and the rule itself does not expressly define what measures fall within its purview. This omission creates space for different judicial interpretations of the rule’s language and ultimately disparate judicial outcomes. Although the Federal Rules of Evidence lend themselves to fact-specific inquiries that can lead to varying interpretations, disparities in interpreting the same evidentiary rule undermine the explicit purpose and uniformity sought by Congress and the Advisory Committee when the Federal Rules of Evidence were enacted. There must be a consistent interpretive approach to Federal Rule of Evidence (“FRE”) 407 to ensure equity among litigants and maintain judicial integrity. A purposivist interpretation of FRE 407 requires courts to find a nexus between the subsequent remedial measure and the alleged injury before excluding such evidence under the rule. This approach prevents FRE 407 from becoming a rule of unlimited exclusion while also encouraging public safety and remaining true to the ideals behind the Federal Rules of Evidence intended by Congress. Adopting this approach does not leave parties that object to such evidence without recourse because FRE 407 is merely one part of a court’s multilayered approach to determining the admissibility of evidence. All evidence remains subject to FRE 401’s relevance standard and FRE 403’s protection against unfair prejudice. Therefore, any concerns related to the relevance or unfair prejudice of subsequent remedial measures may be addressed by those rules.

Source Publication

Boston University Law Review

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Evidence Commons