In the Merritt & Simmons textbook, please read Chapters 9 & 10. There are no meaningful distinctions between the Third and Fourth editions.

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.

University of Maryland Francis King Carey School of Law Criminal Defense Clinic

Summer Akhtar, Rose Cowan, Meghan Howie, Kathryn Meader, Veronica Mina, Daniel Mooney, Avery Potts, Kelsey Robinson, and Maneka Sinha, Esq.

University of Maryland Francis King Carey School of Law Youth, Education, and Justice Clinic Sarah Abutaleb, Alex Greenspan, Maya Jackson, and Michael Pinard, Esq.

[omitted]

Rule 5-407 Subsequent Remedial Measures

The Rule disallows evidence of corrective actions after an event to prove culpability.227 The Rule has two justifications: first, subsequent conduct is not per se an admission; and second, to encourage individuals to take “steps in furtherance of added safety.”228 The Maryland Rule is similar to Federal Rule of Evidence 407.229

The Problems

The Rule is particularly problematic in the context of police misconduct, examples of which have been documented with frequency in recent years.230 However, several courts have excluded internal affairs reports as subsequent remedial measures.231 For example, in Maddox v. Los Angeles, the plaintiff sought to introduce evidence that a police officer stated during a police disciplinary hearing that he violated the city policy on using a chokehold which resulted in the death of a detainee.232 However, the court held that “the disciplinary proceedings constituted a remedial measure.”233 As a result, the Rule makes it difficult for parties to prove police misconduct, especially when that police misconduct is against Black and Brown individuals.

Recommendations

As Maryland becomes the first state to repeal its Law Enforcement Bill of Rights, police will be subject to increased accountability and transparency.234 The Maryland judiciary should support that increased accountability by paving the way for meaningful litigation. The Rule should explicitly exclude internal affair investigation reports and measures taken in response to such reports from the definition of remedial measures

Footnotes:

• 227 MD. R. EVID. 5-407 (“(a) In general. When, after an event, measures are taken which, if in effect at the time of the event, 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. (b) Admissibility for other purposes. This Rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as (1) impeachment or (2) if controverted, ownership, control, or feasibility of precautionary measures.”).
• 228 Angelakis v. Teimourian, 150 Md. App. 507, 520 (2003) (quoting Tuer v. McDonald, 347 Md. 507, 522 (1997)).
• 229 FED. R. EVID. 407 (“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.”).
• 230 See, e.g., Evan Hill, Ainara Tiefenthäler, Christiaan Triebert, Drew Jordan, Haley Willis, & Robin Stein, How George Floyd Was Killed in Police Custody, N.Y. TIMES (updated Apr. 6, 2021), https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html; Steve Karnowski & Amy Forliti, Floyd Family Agrees to $27 Million Settlement Amidst Ex-Cop’s Trial, A.P. (March 12, 2021), https://apnews.com/article/minneapolis-pay-27-million-settlefloyd-family-lawsuit-52a395f7716f52cf8d1fbeb411c831c7; Justin Fenton, Baltimore Expected to Pay $8 Million to Settle Gun Trace Task Force Lawsuit, THE WASH. POST (Nov. 15. 2020)
• 231 Maddox v. City of Los Angeles, 792 F.2d 1408, 1417 (9th Cir. 1986) (holding that “Internal Affairs investigation and measures taken by the defendant City were remedial measures taken after the incident . . . [and] evidence of these proceedings was therefore properly excluded.”); Luera v. Snyder, 599 F. Supp. 1459, 1463 (D. Col. 1984) (“testimony of changes in police department's policies” were inadmissible as evidence of a subsequent remedial measure); Mahnke v. Washington Metropolitan Area Transit Authority, 821 F. Supp. 2d 125 (D.D.C. 2011) (concluding that internal investigation constituted a subsequent remedial measure under Federal Rule of Evidence 407).
• 232 792 F.2d 1408, 1417 (9th Cir. 1986).
• 233 Id. at 1417. 234 Ovetta Wiggins & Erin Cox, Maryland Enacts Landmark Police Overhaul, First State to Repeal Police Bill of Rights, THE WASH. POST (Apr. 10, 2021), https://www.washingtonpost.com/local/md-politics/hogan-vetoes-policeaccountibility/2021/04/09/c0ac4096-9967-11eb-962b-78c1d8228819_story.html

Please go to our Moodle course page, where you can answer Comprehension Questions #11.

Practical Litigator

September 2002

Douglas R. Richmond^a1

Copyright (c) 2002 by the American Law Institute; Douglas R. Richmond

There are exceptions to the rule against admitting evidence of subsequent remedial measures. But you need to keep an eye out for attempts to use the exception that could swallow the rule.

TRIAL LAWYERS UNDERSTAND that subsequent remedial measures are inadmissible to prove a defendant’s negligence or culpable conduct, or a product defect. Though sometimes referred to as the “subsequent repair rule,” the prohibition against the admission of evidence of subsequent remedial measures is not limited to “repairs” as that term is commonly understood; it applies to any kind of post-event change or precaution. See, e.g., Swans v. City of Lansing, 65 F. Supp. 2d 625, 644-45 (W.D. Mich. 1998) (discussing change in police department policy).

*36 Subsequent remedial measures are the subject of Federal Rule of Evidence 407 and state equivalents. Rule 407 provides:

“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.”

“Event” as used in Rule 407 generally refers to the accident or occurrence in which the plaintiff is injured or damaged. Traylor v. Husqvarna Motor, 988 F.2d 729, 733 (7th Cir. 1993).

Rule 407 serves at least two important purposes. First, the rule encourages potential defendants to make their products or properties safer. TLT- Babcock, Inc. v. Emerson Elec. Co., 33 F.3d 397, 400 (4th Cir. 1994); Raymond v. Raymond Corp., 938 F.2d 1518, 1523 (1st Cir. 1991). Second, the rule prevents evidence of subsequent remedial measures from distracting jurors from the relevant time frame for their inquiry. Raymond, 938 F.2d at 1523. In a products liability case, for example, the proper inquiry is whether the subject product was defective and unreasonably dangerous at the time of its manufacture and sale-not sometime thereafter. Furthermore, subsequent remedial measures are not necessarily relevant to a defendant’s liability; indeed, they are equally consistent with injury by mere accident. Seyler v. Burlington N. R.R., 102 F. Supp. 2d 1226, 1245 (D. Kan. 2000).

Evidence of Subsequent Remedial Measures Sometimes Admissible

As the language of Rule 407 itself makes clear, evidence of subsequent remedial measures sometimes is admissible. In other words, there are exceptions to the general rule of inadmissibility. A plaintiff may introduce evidence of subsequent remedial measures to prove ownership, control, or the feasibility of precautionary measures if the defendant disputes these issues. And there is another key exception: impeachment. In Pitasi v. Stratton Corp., 968 F.2d 1558 (2d Cir. 1992), for example, the court held that the plaintiff should have been allowed to offer evidence that a resort roped off a ski trail and erected warning signs after his injury when it defended the case at trial by arguing that the risk posed by the trail was so obvious that there was no need for any sign, rope or other warning. The Pitasi court reversed a defense verdict and remanded the case for a new trial.

Impeachment Exception the Most Troublesome

Of all the Rule 407 exceptions, the impeachment exception is the most troublesome. See Harrison v. Sears, Roebuck & Co., 981 F.2d 25, 31 (1st Cir. 1992). If construed too broadly, the exception swallows the rule. See Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1567 (11th Cir. 1991). The impeachment exception can be used as a subterfuge to prove negligence or culpability. Accordingly, impeachment with subsequent remedial measures ought to be an evidentiary concern of considerable importance to trial lawyers. Unfortunately, the Rule 407 impeachment exception is all too often overlooked or misunderstood.

Rule 407’s reference to impeachment presumably contemplates contradiction; that is, the plaintiff may introduce evidence *37 of the subsequent remedial measure to contradict the defendant’s witness, thus damaging that witness’s credibility with the jury. The problem is that almost any testimony by a defense witness can be contradicted in some way by evidence of a subsequent remedial measure. In short, if “impeachment” as used in Rule 407 were read to mean mere contradiction, the exception would swallow the rule. Accordingly, most courts narrowly construe the impeachment exception.

How Narrow Impeachment Works

Kelly v. Crown Equipment Co., 970 F.2d 1273 (3d Cir. 1992), is an illustrative case. In Kelly, plaintiff Joseph Kelly was injured when he dismounted from a forklift. The forklift was designed so that the operator could lower the platform on which he stood close to the ground for a safe exit. Rather than lowering the platform, Kelly jumped off the forklift. When he did so, the O-ring on his safety belt caught on a ring attached to a pole at the rear of the platform. He was thus jerked back onto the platform and hurt his back.

Kelly and his wife sued the forklift manufacturer on a strict liability theory, alleging that the forklift was defectively designed. There was evidence that the defendants changed the design of its forklifts after the forklift involved in Kelly’s accident was manufactured. The defendant removed the ring on the pole and added a mechanism that lowered the pole onto the platform when the operator entered or exited the platform.

At trial, the defendant’s engineering expert, Dr. Watkins, testified that the forklift involved in the accident was properly designed. The specifically testified that the forklift was of “an excellent and proper design.” Id. at 1278. He so testified even though he knew that the design had been altered for newer machinery.

The plaintiffs argued that evidence of the defendant’s subsequent remedial measures-which the district court had previously excluded under Rules 407 and 403-was admissible to impeach Dr. Watkins. The Kelly court disagreed. Evidence of the subsequent remedial measures would not contradict Dr. Watkins’ testimony because the alteration to the forklift did not compel the conclusion that the original design was defective:

“Dr. Watkins did not make a statement that the forklift’s design was the best or the only one possible. He said only that it was an excellent and proper design. Thus, evidence of subsequent changes cannot serve to impeach his statements.”

Id. (citing Pub. Serv. Co. v. Bath Iron Works Corp., 773 F.2d 783 (7th Cir. 1985)).

The Impeachment Must Be More than Mere Contradiction

The Kelly court reasoned that defining the term “impeachment” in Rule 407 as broadly as the plaintiff urged would permit the exception to swallow the rule, inasmuch as any evidence of subsequent remedial measures might be thought to contradict-and so in a sense impeach-a party’s testimony. Id. (quoting Flaminio v. Honda Motor Co., 733 F.2d 463, 468 (7th Cir. 1984)). The court therefore concluded that the district court properly excluded the evidence under Rule 407.

What Is the Nature of the Contention the Plaintiff Wants To Impeach?

In Harrison v. Sears, Roebuck & Co., 981 F.2d 25 (1st Cir. 1992), Benjamin Harrison injured two fingers while using a jointer-planer. Harrison was injured when his left hand entered an unguarded aperture and came in contact with the jointer’s moving blade. The manufacturer of the jointer, Emerson Electric, subsequently changed *38 the jointer’s design to eliminate the opening that contributed to Harrison’s injury.

At trial, Sears and Emerson Electric called as their engineering expert, Jack Hyde, who testified that “‘there [was] no hazardous area left exposed next to the switch where you are going to unintentionally get your hand in there and contact the cutter head.”’ Id. at 31. Hyde had participated in the re-design of the jointer that eliminated the opening at issue.

The jury returned a defense verdict and the plaintiffs appealed. They argued on appeal that they should have been allowed to introduce evidence of the jointer’s post-accident re- design to impeach Hyde’s testimony. The Harrison court disagreed:

“As impeachment evidence the only available basis for admission of the subsequent design change would have been to impeach Hyde’s contention that the accident could not have happened in the manner described by [plaintiffs]. To allow [plaintiffs] to impeach this statement would in effect enable them to impeach Hyde’s claim that the product was not defective and that [the defendants] were not negligent. If the evidence was to impeach Hyde, [plaintiffs’] argument to the jury could have closely paralleled an argument that the subsequent [remedies] measure could be seen as proof that [the defendants] were negligent.”

Id. at 32. Because Hyde’s statement and qualifications as an expert witness “could only have been indirectly impeached by the subsequent remedial measure evidence and because the nature of the evidence was highly prejudicial,” the trial court did not err in excluding it. Id. The Harrison court thus affirmed the judgment for the defendants.

Does the Impeachment go to Conditions After the Accident?

In Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560 (11th Cir. 1991), plaintiff Mayetta Wilkinson was a passenger on a cruise ship. She was injured when an automatic sliding glass door closed on her bare foot. She sued the ship’s owner, Carnival, for negligence.

Several witnesses testified that after the plaintiff’s accident the door was locked in an open position, and that it stayed that way for the remainder of the cruise. The trial court correctly determined that the act of locking the door open was a subsequent remedial measure for Rule 407 purposes. The court allowed the evidence to be admitted for impeachment, however, when one of the ship’s officers, Rafael Marcialis, testified that the door was in normal operating condition when he inspected it on the day of the accident. The jury ultimately returned a sizable verdict for Wilkinson and Carnival appealed to the Eleventh Circuit.

The Wilkinson court reasoned that the fact that the door was kept permanently open after the plaintiff’s injury could not impeach Marcialis’ testimony because he did not testify about the condition of the door after the accident. He did not assert that the ship’s crew or Carnival exercised all reasonable care in maintaining the door. He did not testify that the door was in the “best” or the “safest” condition. Id. at 1568. Moreover, the witnesses’ testimony about the door being kept open likely gave rise to the precise inference of negligence that Rule 407 was intended to avoid. Id. at 1568-69. The court thus held that the trial court abused its discretion in admitting the evidence under the impeachment exception, and for this reason and others reversed and remanded the case.

The Contradiction Must Be Direct

In sum, evidence of subsequent remedial measures offered for impeachment must contradict a witness’s testimony directly. Complaint of Consolidation Coal Co., 123 F.3d 126, 136 (3d Cir. 1997); see, e.g., *39 Stevens v. Bangor & Aroostook R.R., 97 F.3d 594, 598-99 (1st Cir. 1996) (finding that impeachment was proper after witness testified that he had never stated that the rails on a wrecked car were in disarray at the time of the accident and that they were instead arranged neatly). Evidence of subsequent remedial measures that only tangentially touches on a witness’s credibility will not satisfy the impeachment exception. See, e.g., Reddin v. Robinson Prop. Group Ltd. P’ship, 239 F.3d 756, 759-60 (5th Cir. 2001).

SUPERLATIVES: PIGS GET FAT, HOGS GET SLAUGHTERED

While the impeachment exception is narrowly construed, thus allowing defendants reasonable leeway in advocating the safety of their operations or products, a defendant that testifies in the form of superlatives almost certainly triggers the exception. See, e.g., Wood v. Morbark Indus., Inc., 70 F.3d 1201, 1208 (11th Cir. 1995) (allowing evidence of subsequent remedial measures to impeach testimony that chute on wood chipper was the “safest length…you could possibly put on the machine”); Polythane Sys., Inc. v. Marina Ventures Int’l, Ltd., 993 F.2d 1201, 1210-11 (5th Cir. 1993) (permitting impeachment where defendant argued that its dock system was “one of the strongest in the world”). In this situation the evidence of a subsequent remedial measure goes beyond mere contradiction. Here there is a clear nexus between the subsequent remedial measure and the statement to be impeached. Indeed, evidence of a subsequent remedial measure may reveal the witness to be a liar.

If It’s So Great, Why Did They Redesign It?

The leading case on-point is Muzyka v. Remington Arms Co., 774 F.2d 1309 (5th Cir. 1985). Muzyka was a products liability action in which the plaintiff claimed that a Remington Model 700 rifle was unreasonably dangerous because its bolt- action design was such that the rifle could only be unloaded when the safety was off. A few months after the accident in which the plaintiff was injured, Remington re-designed the bolt on the Model 700 so that the weapon could be unloaded with the safety on.

At trial, Remington made the excellence of the safety features on the Model 700 the core of its defense. In opening statement, defense counsel told the jury that the evidence would be “that the Remington Model 700 rifle is one of the most popular, best, strongest, safest rifles that has been manufactured on the market.” Id. at 1310. Remington offered testimony that the safety on the subject rifle had “the best safety available,” and that the Model 700 was “the best and safest rifle on the market.” Id. When the plaintiff’s attorney sought to impeach this testimony by offering evidence of the subsequent design change, the trial court excluded the evidence. The jury returned a verdict for Remington and the plaintiff appealed.

The Muzyka court reasoned that admitting evidence of the design change for impeachment purposes was required by “both the letter and the spirit” of Rule 407. Id. at 1313. As the court explained:

“The jury was told that the Remington Model 700 rifle was not only a fine and safe gun but that it was the standard against which all competition was measured and that it embodied the ultimate in gun safety. The rifle was described as the premier rifle, the best and the safest rifle of its kind on the market….

Having received that evidence, the jury was denied evidence in impeachment of the experts who spoke in those superlatives. The witnesses were not asked to explain why the safety of the Model 700 series was changed within weeks of the subject accident. There may have been reasons why the safety and the bolt operation on the safest and best and most popular rifle was redesigned… Whatever those reasons,…the jury was entitled to hear them and to evaluate and weigh that evidence….”

Id. at 1314-15. The court thus vacated the verdict for Remington and remanded the case for a new trial.

Defendants who modify their product or practices after an accident should be careful to avoid the use of superlatives such as “best” and “safest” when advocating their positions. Courts should allow defendants to describe their practices or products as “safe,” “proper,” “reasonable,” “good” and the like without fear of impeachment with evidence of subsequent remedial measures. This approach allows defendants to present their cases and encourages them to take safety precautions to prevent future accidents while preventing them from misleading jurors with unjustified boasts.

 SUBTERFUGE

The Rule 407 impeachment exception must not be used as a subterfuge to prove a defendant’s negligence or culpability. Harrison, 981 F.2d at 31. For that reason, and because the exception has such great potential to swallow the rule, courts must be careful to prevent plaintiffs from attempting to manipulate the exception in their favor. Consider this cross-examination of a hotel’s director of security in a case in which a woman was sexually assaulted in the hotel parking lot. Following the rape the hotel installed a closed circuit television system to monitor the parking lot and other portions of the property.

 Q: “[By plaintiff’s counsel] Before my client was raped in your parking lot you employed off-duty police officers to patrol the property, you did lighting studies to determine the sufficiency of your parking lot lighting, and you made sure that shrubs and landscaping were maintained in such a way that people could not hide there, correct?”

 A: “We also studied local crime statistics to plan our security staffing.”

 Q: “That too.”

 A: “Yes.”

 Q: “Do you think you did all you could do to prevent my client’s rape?”

 A: “I think we tried to do what we believed was reasonable and responsible.”

 Q: “OK, using your words, did you do all that you could reasonably do to prevent my client’s rape?”

The witness is now on the horns of a dilemma. If he answers “no” to this final question, he as much as admits the hotel’s negligence. If he answers “yes,” the plaintiff’s lawyer can impeach him with evidence of the closed circuit television system. Ideally, he can fight off this question by saying something like, “You can always do more, but I think that what we did was reasonable and proper,” but even the best witnesses sometimes give less than ideal responses in the heat of trial. It thus falls to the trial judge to prevent the impeachment exception from being abused or misused in situations such as this. A plaintiff should not be allowed to bait a defense witness into triggering the impeachment exception to Rule 407.

 RULE 403

Evidence of subsequent remedial measures that directly contradicts a witness’s testimony or that contradicts testimony in the form of superlatives is not automatically admissible under Rule 407’s impeachment exception. This is because otherwise admissible evidence must always pass muster under Rule 403 before being admitted. Rule 403 provides:

 “Although relevant, evidence maybe 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.”

 A trial court presented with evidence arguably admissible under Rule 407’s impeachment *41 exception must weigh whether the probative value of the evidence is outweighed by the danger of unfair prejudice or confusion. Cann v. Ford Motor Co., 658 F.2d 54, 59 (2d Cir. 1981); see, e.g., Gardner v. Chevron U.S.A., Inc., 675 F.2d 658, 659-60 (5th Cir. 1982). Evidence that might appear to satisfy the impeachment exception must be excluded if it fails the Rule 403 balancing test. The trial court must invoke Rule 403 to exclude evidence offered for impeachment where the jury might improperly infer the defendant’s negligence or culpability from it. See Harrison, 981 F.2d at 32.

 CONCLUSION

Evidence of subsequent remedial measures may be devastating to a defendant. Jurors typically see such evidence as proof of defendants’ negligence or culpable conduct. Federal Rule of Evidence 407 is thus an important safeguard when a defendant has made safety improvements following an accident. The rule contains important exceptions to its general prohibitions, however, including an exception for impeachment.

 The impeachment exception to Rule 407 must be narrowly construed to prevent it from swallowing the rule. Evidence of subsequent remedial measures should come in under the impeachment exception only when it directly contradicts a defendant’s testimony or when a defendant testifies in the form of superlatives. Trial courts must be careful to prevent the impeachment exception from being used as a subterfuge to prove a defendant’s negligence or culpability.

 In short, the impeachment exception to Rule 407 presents a number of challenges to trial lawyers and courts. It can neither be overlooked nor taken for granted.

 Subsequent Remedial Measures and the Problem of Impeachment

Subsequent remedial measures are inadmissible to prove a defendant’s negligence or culpable conduct, or a product defect. But Rule 407 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.

• Of all the Rule 407 exceptions, the impeachment exception is the most troublesome, because it can be used as a subterfuge to prove negligence or culpability. Accordingly, an offer of impeachment through subsequent remedial measures should be challenged at the earliest possible stage.

• If the offer does nothing more than contradict the witness, it falls outside the scope of the exception. See Kelly v. Crown Equipment Co., 970 F.2d 1273 (3d Cir. 1992). The Kelly court reasoned that defining the term “impeachment” in Rule 407 as broadly as the plaintiff urged would permit the exception to swallow the rule, inasmuch as any evidence of subsequent remedial measures might be thought to contradict-and so in a sense impeach-a party’s testimony. Id. (quoting Flaminio v. Honda Motor Co., 733 F.2d 463, 468 (7th Cir. 1984)). The court therefore concluded that the district court properly excluded the evidence under Rule 407.

• What is the nature of the contention the plaintiff wants to impeach? If the evidence would too closely parallel an argument that the defendants were negligent, the evidence should be excluded. See Harrison v. Sears, Roebuck & Co., 981 F.2d 25 (1st Cir. 1992)(“As impeachment evidence the only available basis for admission of the subsequent design change would have been to impeach Hyde’s contention that the accident could not have happened in the manner described by [plaintiffs]. To allow [plaintiffs] to impeach this statement would in effect enable them to impeach Hyde’s claim that the product was not defective and that [the defendants] were not negligent. If the evidence was to impeach Hyde, [plaintiffs’] argument to the jury could have closely paralleled an argument that the subsequent [remedies] measure could be seen as proof that [the defendants] were negligent.”)

• Does the impeachment go to conditions after the accident? In Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560 (11th Cir. 1991), plaintiff was injured when an automatic sliding glass door closed on her bare foot. She sued the ship’s owner, Carnival, for negligence. The Wilkinson court reasoned that the fact that the door was kept permanently open after the plaintiff’s injury could not impeach the witness’s testimony because he did not testify about the condition of the door after the accident.

• While the impeachment exception is narrowly construed, thus allowing defendants reasonable leeway in advocating the safety of their operations or products, a defendant that testifies in the form of superlatives almost certainly triggers the exception. In this situation the evidence of a subsequent remedial measure goes beyond mere contradiction. Here there is a clear nexus between the subsequent remedial measure and the statement to be impeached. A leading case on- point is Muzyka v. Remington Arms Co., 774 F.2d 1309 (5th Cir. 1985).

• Evidence of subsequent remedial measures that directly contradicts a witness’s testimony or that contradicts testimony in the form of superlatives is not automatically admissible under Rule 407’s impeachment exception. This is because otherwise admissible evidence must always pass muster under Rule 403 before being admitted.

. . .

This case concerns the death of Alex Aguilar (“Aguilar” or “decedent”) while in the custody of the Los Angeles Police Department (“LAPD”) on June 9, 2016. (RT 82-83, 592-94)¹ Plaintiffs, the decedent’s estate and two children, alleged that the individual Defendant officers used excessive force on Aguilar, causing his death by asphyxiation, and unreasonably and with deliberate indifference failed to provide necessary emergency medical care mandated by their training, in violation of the Fourth and Fourteenth Amendments to the Constitution. (RT 82-83; ER 262-263, 265-272) Plaintiffs further alleged that the individual Defendants’ constitutional violations were the result of policies, practices, and training of Defendant City of Los Angeles, pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). (RT 82-83, ER 265-269) Plaintiffs alleged federal constitutional claims under 42 U.S.C. § 1983 against the individual Defendants - Matthew Medina, Sergio Melero, Dante Pagulayan, Enrique Lopez, and Andrew Hudlett - and Defendant City of Los Angeles, as well as pendant state law claims. (RT 82-83; ER 262-263, 265-272)

. . .

The LAPD immediately initiated an in-custody death investigation. . . . [and] the LAPD’s force investigation division generated a recommendation condoning the force, with a minority opinion to the contrary. (ER 628-631) However, the LAPD Chief of Police and Los Angeles Board of Police Commissioners adopted the minority opinion and issued findings that the *6 force used on Aguilar was unreasonable and, in various respects, violated LAPD policy and training.

. . .

I. The Trial Court Erroneously Excluded the LAPD Findings that the Use of Force Against Aguilar Was Unreasonable and Out of Policy

The trial court granted Defendant Medina’s motion to exclude the LAPD findings on the grounds that the evidence was more prejudicial than probative (FRE 403) and constituted inadmissible post-remedial measures (FRE 407). (ER 36-38) This decision was erroneous and an abuse of discretion.

. . .

A. The Trial Court Abused Its Discretion in Excluding the LAPD Findings Prior to Trial

1. Rule 403: The Evidence Was Directly Relevant to Plaintiffs’ Claims and Not Unfairly Prejudicial

To be sure, a trial court’s “Rule 403 determination is subject to great deference, because ‘the considerations arising under Rule 403 are susceptible only to case-by-case determinations, requiring examination of the surrounding facts, circumstances, and issues.”’ United States v. Lloyd, 807 F.3d 1128, 1152 (9th Cir. 2015) However, it is not without limits. Rule 403 “is an extraordinary remedy to be used sparingly because it permits the trial court to exclude otherwise relevant *14 evidence. Under the terms of the rule, the danger of prejudice must not merely outweigh the probative value of the evidence, but substantially outweigh it.” United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (emphasis in original); United States v. Kenny, 645 F.2d 1323, 1342 (9th Cir. 1981) (“Rule 403 sets a fairly stringent standard [for exclusion of evidence].”).

“[P]rejudice outweighs probative value where the facts arouse the jury’s feelings for one side without regard to the probative value of the evidence, or in other words, if the jury is basing its decision on something other than the established facts and legal propositions in the case.” United States v. Bowen, 857 F.2d 1337, 1341 (9th Cir. 1988) (emphasis added). This commonly occurs where the evidence is of a type that will appeal to the juror’s emotions, passions, or prejudices. See United States v. Skillman, 922 F.2d 1370, 1374 (9th Cir. 1990). Importantly, not all prejudice is unfair. “That evidence may decimate an opponent’s case is no ground for its exclusion under 403. The rule excludes only evidence where the prejudice is ‘unfair’ - that is, based on something other than its persuasive weight.” United States v. Cruz-Garcia, 344 F.3d 951, 956 (9th Cir. 2003).

In this case, there is little indication that the evidence would have “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Fed. R. Evid. 403, Advisory Committee Notes. The *15 trial court reached a contrary conclusion by deferring to distinguishable and unpersuasive rulings in other cases. This was an abuse of discretion because “as a matter of law [] a court does not properly exercise its balancing discretion under Rule 403 when it fails to place on the scales and personally examine and evaluate all that it must weigh.” United States v. Curtin, 489 F.3d 935, 958 (9th Cir. 2007) (reversing because trial court failed to read entirety of evidence requiring a 403 ruling).⁴ 

a. The LAPD Findings Were Directly and Obviously Relevant to the Claims in the Case

In an excessive force case, “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989). In this particular case, Plaintiffs alleged that the force used against Aguilar, in particular and especially the use of the Taser by Defendant Medina on five separate occasions within a period of one minute, was objectively unreasonable because Aguilar did not take any threatening *16 or violent action against the officers prior to the use of the Taser and was merely attempting to hide evidence. Medina’s excessive force was also a predicate violation for excessive force claims against Defendants Melero and Pagulayan as integral participants / potential intervenors and against Defendant City of Los Angeles pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004) (individual defendant liability based on integral participation in constitutional violation); Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000) (individual defendant liability based on failure to intervene); City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (Monell liability typically predicated on a constitutional violation by individual defendant).

The Chief of Police found that the use of force by Defendant Medina, i.e., the deployment of the Taser, was not “objectively reasonable.” (ER 626) This finding is directly and explicitly relevant to the heart of Plaintiffs’ excessive force claims. The Chief of Police also made a number of other relevant findings, including: (1) Medina applied the taser to Aguilar’s back, when he was on all fours (ER 626); (2) “[A]n officer with similar training and experience as Officer Medina would not reasonably believe Aguilar’s actions were violent or posed an immediate threat to himself or others.” (ER 626); and (3) the officers failed to give a warning required by LAPD policy (ER 622). All of these facts and issues were disputed in *17 this case, see pages 6-7, supra, and all of them were relevant to the determination of whether the use of force against Aguilar was unreasonable.

As a matter of Ninth Circuit law, the violation of police policy and training is relevant to the use of force inquiry, which is determined by the “totality of the circumstances” confronting the officer. See Glenn v. Washington Cnty., 673 F.3d 864, 871, 875 (9th Cir. 2011); Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1102 (D. Or. 2013) (“Ninth Circuit case law [] makes clear that police department policies may be relevant to determining the reasonable range of an officer’s conduct in an excessive force case.”). Thus, even if the LAPD policy had not adopted the Graham standard, the fact that Defendants’ actions violated their agency’s policies and training was clearly relevant for proving that they were not acting reasonably under the circumstances of this case.

Moreover, the LAPD findings were presumptively admissible under Federal Rule of Evidence 803(8)(A)(iii) as an evaluative report resulting from a legally authorized investigation. (CR 144) In such circumstances, both facts and opinions stated in the report are admissible. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 161-67, 170 (1988); Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th Cir. 1999). Law enforcement reports from internal investigations fall within the scope of Rule 803(8)(A)(iii). Wilson v. Beebe, 770 F.2d 578, 590 (6th Cir. 1985) (en banc) (supervisor report on police shooting admissible as public record under *18 Rule 803(8)(A) against defendant officer); Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1103 (D. Or. 2013) (police department use of force review admissible as “factual findings from a legally authorized investigation”). 

b. The Trial Court’s 403 Ruling Relied on Generic and Inapplicable Reasoning and Failed to Distinguish Prejudice from Unfair Prejudice

The order excluding the LAPD findings did not independently evaluate whether they gave rise to “unfair” prejudice that “substantially outweighed” their relevance in this particular case. Fed. R. Evid. 403. Rather, the district court relied on two citations, one to an easily distinguishable Ninth Circuit case and the other to an unpublished district court case. (ER 37-38) See Argument Section I(A)(1)(d), infra.

The court’s concerns regarding prejudice - as inferred from the parentheticals for the cases cited by the trial court - appear to have been: (1) “the jury might [infer] that [the defendant officers] were guilty of wrongdoing merely because the Police Department conducted disciplinary proceedings”; (2) “[t]he jury might [give] unfair or undue weight to this evidence”; (3) the jury “might [be] confused as to the relevance of this evidence”; (4) the “conclusions in the report were based on evidence collected during the investigation which may or may not be the same evidence the jury would be exposed to at trial”; and (5) “informing jurors regarding the outcome of the internal affairs investigation would be *19 unhelpful and ‘may in fact be harmful to the jury.” (ER 37-38) For the reasons stated below, these concerns do not support the exclusion of the LAPD findings under Rule 403.

i. Several Types of Possible Prejudice Referenced by the Trial Court Simply Are Not at Issue in this Particular Case.

In this case, there is no concern that the jury would infer wrongdoing from the mere existence of a disciplinary proceeding because the LAPD findings were not the result of disciplinary proceedings and did not result in discipline. The findings were the result of an in-custody death investigation; such investigations are required as a matter of LAPD policy for all in-custody deaths. (RT 628-29) The mere existence of a policy-mandated investigation would not give rise to any inference that the defendant officers were guilty of wrongdoing. Moreover, the jury was already aware of the existence of the investigation because interviews conducted during the investigation, particularly the interviews of the Defendants, were central to the evidence in the case, and the investigation itself was referenced at several points during the trial. (See, e.g., RT 628-29, 695, 794-98, 1761-63) Accordingly, the jury was already exposed to whatever prejudicial inference might be drawn by the existence of an investigation.

The concern that “conclusions in the report were based on evidence collected during the investigation which may or may not be the same evidence the *20 jury would be exposed to at trial” (ER 37-38) is somewhat illogical, inapplicable in the instant case, and immaterial to the 403 inquiry. In this case, the use-of-force investigation reviewed the same evidence that was later presented to the jury, generally: statements by the involved officers, photos, taser logs, and whatever video was available. Aside from expert opinion testimony and subsequent inconsistent statements by the Defendant officers, nothing new was introduced at trial that was not available at the time of the LAPD use-of-force investigation. To the extent that the jury did have access to different evidence, and Defendants believed that such evidence impeached the LAPD findings, they were free to present that evidence and argue the matter in closing.

In fact, the LAPD use-of-force investigation and findings were highly probative to Plaintiffs’ case precisely because they were based on Defendants’ candid post-incident statements that Defendants later amended and disavowed. The LAPD finding, based on the Defendants’ original statements, would have powerfully highlighted the inconsistencies in Defendants’ later in-court testimony and demonstrated the significance of those inconsistencies.

ii. The Potential for Undue Weight and Confusion Was Minor, not Substantial, and Could Have Been Cured with a Limiting Instruction

Undue weight and confusion of issues are proper factors for consideration in the context of Rule 403, but they are not significant concerns in this case.

*21 The LAPD Chief of Police and Police Commission reviewed the evidence relating to Aguilar’s death and, based on that evidence, made findings that were directly tied to “established facts and legal propositions in the case” and not to anything that would have a distracting emotional impact on the jury. See United States v. Orr, 977 F.2d 593 (9th Cir. 1992). The persuasive weight of the evidence was based not on any affinity that any juror would have with the LAPD Chief of Police or the members of the Police Commission, but rather on the lack of bias that those persons would have against the Defendants and their intimate knowledge of policing generally as well as LAPD police policy and training. In other words, any weight placed by the jury on this evidence would not be “undue” or “unfair” but well deserved.

Regarding confusion, the only potential for confusion identified by Defendants below was the possibility that the jury would not be able to distinguish between a violation of LAPD policy and a constitutional violation. This concern, to the extent that it is a concern at all, is simply insufficient to justify exclusion of the evidence. The jury instructions that are given in constitutional tort cases demand that jurors manage much more confusing concepts than this one. And in this case, the LAPD’s policy was explicitly based on the constitutional standard and used the exact same language as Graham v. Connor, 490 U.S. 386, 397 (1989). (RT 2325) Moreover, both parties presented extensive evidence regarding the relevant LAPD *22 policies and offered competing expert testimony regarding what they required. The LAPD findings therefore posed no greater potential for confusion than the evidence already before the jury.

In this regard, courts regularly reject undue weight and confusion arguments in the context of public reports such as this one. See, e.g., In re Aircrash in Bali, Indonesia, 871 F.2d 812, 816 (9th Cir. 1989) (FAA Report following plane crash, admissible; airline defendant failed to demonstrate that the report was “unduly prejudicial”); Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300, 1308 (5th Cir. 1991) (reversing exclusion of report; 403 “undue weight” and “confusion” arguments would apply in every case and thereby “gut the admissibility of evaluative reports under Rule 803(8)”); Quinn v. Everett Safe & Lock, Inc., 53 F. Supp. 3d 1335, 1340 (W.D. Wash. 2014) (rejecting argument that the jury would “simply defer to the [findings of] Department of Labor rather than evaluate the evidence for itself”). The prejudice in those cases - that the findings in the report are directly relevant to the issues before the jury and therefore the report might be unduly influential on the jury - is exactly the kind of prejudice that is not unfair under Rule 403. The same reasoning applies here.

Finally, to the extent that there was any concern regarding confusion of issues or undue weight, such a concern could have easily been managed with a simple instruction. See, e.g., *23 United States v. Boulware, 384 F.3d 794, 808 (9th Cir. 2004) (reversing exclusion of evidence; “Any danger that the jury would have given undue weight to the state court judgment could have been dealt with by a cautionary instruction.”); Velazquez v. City of Long Beach, 793 F.3d 1010, 1028 (9th Cir. 2015) (unfair prejudice “could have been cured short of categorical exclusion by an appropriate limiting instruction”). 

. . .

d. This Case Is Readily Distinguishable from Maddox; Other District Courts Have Properly Rejected 403 Arguments Regarding Similar Evidence

As stated above, the trial court’s order relies on citations to two cases - Maddox v. City of Los Angeles, 792 F.2d 1408, 1417 (9th Cir. 1986) and an unpublished district court case. (ER 37-38) But those cases cannot serve as a substitute for independent Rule 403 balancing.

Maddox does not hold that evidence relating to police internal investigations is per se inadmissible under Rule 403, but merely affirms a Rule 403 balancing under the particular facts of that case, despite it being a “close question.” Id. at 1417-18. The district court’s unreasoned reliance on Maddox was misplaced. see United States v. Sepulveda-Barraza, 645 F.3d 1066, 1070 (9th Cir. 2011) (“per se rule” regarding inadmissibility of evidence based on Ninth Circuit case regarding similar evidence would be “inconsistent with the case-by-case approach mandated by Rule 403”); Microsoft Corp. v. Motorola, Inc., 795 F.3d 1024, 1056 (9th Cir. 2015) (previous Ninth Circuit cases affirming exclusion of consent decree evidence under Rule 403 did not govern instant case where the district court admitted similar evidence).

*26 Moreover, Maddox is easily distinguishable. The case did not concern an agency finding, but rather an admission by an officer during the course of a disciplinary proceeding that he violated the department’s choke hold moratorium. 792 F.2d at 1417. The policy and other relevant evidence were already before the jury, and there was little dispute that the officer violated the policy. Id. at 1411, 1417. His position at trial was that he had not, personally, been informed of the moratorium (he missed roll call on the day it was announced), not that he had not violated it. Id. at 1411-12. Accordingly, the Court acknowledged that the “evidence arguably had little probative value.” Id.

Regarding prejudice, the Maddox Court stated that “the prejudicial effect of this evidence was also arguably great. The jury might have inferred that Officer Harris was guilty of wrongdoing merely because the Police Department conducted disciplinary proceedings. The jury might have given unfair or undue weight to this evidence or they might have been confused as to the relevance of this evidence.” 792 F.2d at 1417 (emphasis added). But, the Court stopped short of affirmatively stating that the evidence had significant prejudicial effect. And as set forth supra, the Maddox Court’s primary concern regarding the possible inference of wrongdoing from disciplinary proceedings, is not at issue here.

*27 In the end, the holding of Maddox is very limited: under the particular facts of that case, although it was a “close question,” the district court did not abuse its broad discretion under Rule 403. 792 F.2d at 1117.

The unpublished case cited by the trial court below, Vazquez v. City of Long Beach, No. CV 12-9923 PJW, 2016 WL 9114912 (C.D. Cal. Apr. 19, 2016), contains no statement of facts and provides little analysis on the relevant issue. It is not persuasive and cannot support the trial court’s decision in this case. Moreover, the Vazquez evidentiary ruling was not appealed because the Plaintiffs won at trial. See Vazquez v. City of Long Beach, No. CV 12-9923 PJW, 2017 WL 5973290 (C.D. Cal. Jan. 24, 2017).

District courts that have independently conducted Rule 403 balancing with respect to evidence similar to the evidence in this case have concluded that the police department findings were admissible. Bonds v. Dautovic, 725 F. Supp. 2d 841, 846 (S.D. Iowa 2010) (403 prejudice and confusion arguments are “not compelling” because the “potential damaging effect” of the chief of police finding that the defendant used “inappropriate” force was the kind that derives from the relevance of the evidence not some unfair consideration); Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1103 (D. Or. 2013) (admitting internal investigation findings that “there d[id] not appear to be a valid basis for administering this level of force” by the defendant officers and rejecting the same *28 Rule 403 arguments made in this case); see also Wilson v. Beebe, 770 F.2d 578, 590 (6th Cir. 1985) (affirming admission of report of internal use of force investigation over challenges under Rules 403 and 407).

In this particular case, the court failed to conduct a case-specific 403 analysis and relied on reasoning that was inapplicable and unpersuasive. Because the court misjudged, or failed to judge, the relevant factors, the ruling was an abuse of discretion. Cf. United States v. Boulware, 384 F.3d 794, 808 (9th Cir. 2004) (reversing 403 exclusion of evidence; trial court misjudged probative value of the evidence; potential undue weight prejudice and confusion of issues could have “easily” been controlled); United States v. Cruz-Garcia, 344 F.3d 951, 956-57 (9th Cir. 2003) (reversing 403 exclusion of evidence; trial court overestimated potential unfair prejudice from evidence and failed to recognize the extent to which the identified prejudice was not “unfair,” but rather directly related to the relevance of the evidence).

2. Rule 407: The LAPD Findings Did Not Constitute a Subsequent Remedial Measure

The trial court’s order also held, citing Maddox, that the LAPD findings constitute “remedial measures” that are inadmissible under Federal Rule of Evidence 407. This ruling was erroneous as a matter of law.

Rule 407 prohibits the use of subsequent remedial measures - policy changes, product re-design, warnings, etc. that are implemented after an incident *29 and “would have made an earlier injury or harm less likely to occur” - if they are offered to prove, inter alia, “negligence” or “culpable conduct.” Fed. R. Evid. 407. Such measures are still admissible for other purposes, including impeachment. Id. “Rule 407 includes only the actual remedial measures themselves and not the initial steps toward ascertaining whether any remedial measures are called for.” Fasanaro v. Mooney Aircraft Corp., 687 F. Supp. 482, 487 (N.D. Cal. 1988); Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1103 (D. Or. 2013) (“By its terms,” Rule 407 “does not extend to post-incident investigations into what did occur.”).

The trial court’s contrary ruling, excluding the entirety of the LAPD findings, is based on the following statement in Maddox: “The Internal Affairs investigation and measures taken by the defendant City were remedial measures taken after the incident.” Maddox, 792 F.2d at 1417. However, out of context, this statement is overbroad and misleading. In Maddox, the Court distinguished between the use of the evidence in question - “internal affairs investigation and measures taken by defendant City” - against the city versus its use against the individual defendant officer. Maddox, 792 F.2d at 1417. Only with respect to the city, did Maddox suggest that the evidence was inadmissible under Rule 407,⁵ and *30 the text of Maddox makes clear that the Court was focused on the nature of the internal investigation - a “disciplinary proceeding” - and the remedial measures resulting from such a proceeding, rather than any evidence or findings therein. Id.

Accordingly, after Maddox, several trial courts in this circuit have correctly rejected Rule 407 as a basis for excluding internal investigations and findings by police departments and other entities. Estate of Nunez by & through Nunez v. Cty. of San Diego, 381 F. Supp. 3d 1251, 1255 (S.D. Cal. 2019) (“[A] defendant’s internal investigations and reviews might constitute the initial step toward identifying the need for particular remedial action, but they are not themselves excluded under Rule 407.” (internal quotations omitted)); Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1103 (D. Or. 2013) (Under 407, “[t]here is a distinction, however, between the actual disciplining of officers for their conduct, which could constitute a remedial measure, and the investigation that precedes a disciplinary process”; citing Maddox).

And other circuits have reached similar conclusions. Wilson v. Beebe, 770 F.2d 578, 590 (6th Cir. 1985) (police department’s post-shooting report was not excluded under Rule 407 because “[t]he report did not recommend a change in procedures following the shooting; it was a report of that incident and nothing *31 more”); see also, e.g., Novick v. Shipcom Wireless, Inc., 946 F.3d 735, 739 (5th Cir. 2020) (“[P]ost-accident investigations” and reports are not subsequent remedial measures under Rule 407); Rocky Mountain Helicopters, Inc. v. Bell Helicopters Textron, a Div. of Textron, Inc., 805 F.2d 907, 918 (10th Cir. 1986) (“It would strain the spirit of the remedial measure prohibition in Rule 407 to extend its shield to evidence contained in post-event tests or reports.”).

Accordingly, the LAPD findings were not post-remedial measures within the meaning of Rule 407, and Maddox, read correctly, is consistent with the above cases, which distinguish between reports reflecting investigations and findings (admissible) and the actual remedial measures taken based on those findings (inadmissible). Ironically, the remedial measures included in the LAPD findings - additional debriefing and retraining imposed on Medina and Melero - were the only parts of the LAPD findings that were admitted, because they were relevant for a non-407 purpose. (RT 11-12, 794-800, 1569-74, 1763-64) The trial court’s exclusion of the remainder of the LAPD findings cannot be justified by Rule 407. 

. . .

CONCLUSION

For all of the foregoing reasons, Plaintiffs respectfully request that the Court vacate the judgment and remand for a new trial.

In the Merritt & Simmons textbook, please read Chapter 12. There are no meaningful distinctions between the Third and Fourth editions. 

(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.

(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.

One perspective:

“Guilty pleas are highlight probative of the truth.  This is because guilty pleas can carry significant consequences for the person, including, of course, imprisonment.  Thus, assuming fair trial procedures exist, it is unlikely that a person will choose to plead guilty unless there is a clear factual basis for a plea.  . . . [I]t is safe to assume that a criminal defendant will not enter a plea of guilty unless he knows there is a significant chance he will be convicted at trial.

-          David P. Leonard & Victor J. Gold, Evidence: A Structured Approach, at 41-411 (2008)

Another perspective:

“The major problem with plea bargaining is that it forces the party into a situation where they have to take a guess about what the evidence is, about how strong the case might be, and they have to make that guess against the background of enormously severe penalties if you guess wrong. So defendants, even if they have strong defenses, and even if they are innocent, in fact face enormous pressure to play the odds and to accept a plea. And the more likely they are to be innocent, and the more strong their defenses are, the bigger discount and the bigger benefits the prosecutor will offer them. Eventually at some point it becomes so tempting that it might be irresistible, especially when the consequences of guessing wrong are disastrous.

So the result is that the system as a whole doesn't do what we count on it to do, which is to sort out the guilty people from the innocent people. It doesn't do that because the guilty people and the innocent people are all faced with the same pressure to plead guilty.”

-       Professor Stephen Schulhofer, http://www.pbs.org/wgbh/pages/frontline/shows/plea/faqs/

Background: Software developer brought breach of contract action, alleging that patentee improperly refused to offer it licenses for use of foreign and domestic standard essential patents on reasonable and non-discriminatory (RAND) terms. After case was consolidated with patentee’s patent infringement action, the United States District Court for the Western District of Washington, James L. Robart, J., 2013 WL 6000017, entered judgment in developer’s favor, and patentee appealed. The Court of Appeals for the Federal Circuit, Lourie, Circuit Judge, 564 Fed.Appx. 586, granted developer’s motion to transfer appeal. 

Affirmed.

Attorneys and Law Firms

*1029 Kathleen M. Sullivan (argued), Quinn Emanuel Urquhart & Sullivan, LLP, New York, N.Y.; Brian C. Cannon, Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, CA, for Defendants–Appellants.

Carter G. Phillips (argued), Sidley Austin LLP, Washington, D.C.; David T. Pritikin, Sidley Austin LLP, Chicago, IL; Arthur W. Harrigan, Jr., Calfo Harrigan Leyh & Eykes LLP, Seattle, WA; T. Andrew Culbert, Microsoft Corporation, Redmond, WA, for Plaintiff–Appellee.

Wayne P. Sobon, Arlington, VA, and and for Amicus Curiae American Intellectual Property Law Association.

[amici counsel omitted]

Appeal from the United States District Court for the Western District of Washington, James L. Robart, District Judge, Presiding. D.C. Nos. 2:10–cv–01823–JLR, 2:11–cv–00343–JLR.

Before: SIDNEY R. THOMAS, Chief Judge, and J. CLIFFORD WALLACE and MARSHA S. BERZON, Circuit Judges.

OPINION

BERZON, Circuit Judge:

[omitted]

I. BACKGROUND

[omitted]

B. History of the Present Dispute

In October 2010, Microsoft sued Motorola in both the U.S. International Trade Commission (“ITC”)³ and the Western *1032 District of Washington for alleged infringement of certain smartphone patents.  [omitted]

In September 2013, the jury returned a verdict for Microsoft in the amount of $14.52 million: $11.49 million for relocating its distribution center and $3.03 million in attorneys’ fees and litigation costs. [omitted]

Motorola then appealed from the judgment on the breach of contract claim to the Federal Circuit. On Microsoft’s motion, the Federal Circuit transferred the appeal to this court. Microsoft Corp. v. Motorola, Inc., 564 Fed.Appx. 586 (Fed.Cir.2014).

II. DISCUSSION

[omitted]

E. Evidentiary Rulings

Motorola’s final argument is that the district court abused its discretion in making two evidentiary rulings. Evidentiary rulings are reviewed for abuse of discretion. Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 462 (9th Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 55, 190 L.Ed.2d 30 (2014). If we determine that evidence was improperly admitted or excluded, we must remand for a new trial unless the beneficiary of the error can prove “that it is more probable than not that the jury would have reached the same verdict.” Id. at 465.

[omitted] 

2. The FTC Investigation

In July 2013, the FTC and Motorola settled an investigation into Motorola’s SEP enforcement practices, including its seeking of injunctions. The settlement stipulated that it did not constitute an admission of a violation of any law. Over Motorola’s objection, the court permitted Microsoft to admit evidence of the investigation through the testimony of Microsoft’s deputy general counsel, David Heiner. Motorola contends that allowing that evidence to be introduced was error.

Heiner testified that in May 2012, Microsoft filed a complaint with the FTC alleging that Motorola “had not lived up to its promise to make its patents available on ... reasonable but non-discriminatory terms; ... and that they compounded their failure to live up to that promise by actually going to court in other places to get injunctions, blocking Microsoft from shipping products that implemented these standards.” Heiner further testified that, following Microsoft’s communication, the FTC initiated an investigation against Motorola for, in the FTC’s words, “reneg[ing] on a licensing commitment made to several standard-setting bodies to license its standards-essential patents ... on FRAND terms by seeking injunctions against willing licensees of those SEPs.” Heiner was *1055 not permitted to testify about the details of the investigation.

Motorola challenges admission of Heiner’s testimony about the FTC investigation under Federal Rules of Evidence 403 and 408, both of which the district court considered before allowing the testimony.²³ Rule 408 prohibits introduction of evidence of acceptance of consideration for compromising a claim to prove the validity of the claim. Fed.R.Evid. 408. The rule has been interpreted to bar admission of civil consent decrees to prove the governments’ allegations. See United States v. Austin, 54 F.3d 394, 400 (7th Cir.1995). Consent decrees can be introduced, however, for other purposes, such as to show notice or knowledge. See id.; United States v. Gilbert, 668 F.2d 94, 97 (2d Cir.1981).

Here, the court allowed the testimony to show that Motorola was aware its actions were contrary to “custom and practice in the industry”—that its “conduct ha[d] been found objectionable.” That is, Heiner’s testimony was admitted not to show that the FTC had made any conclusions about whether Motorola’s conduct was in breach of its RAND obligations, but rather to show that Motorola was aware the FTC (and Microsoft) found its conduct questionable enough to merit investigation. A conclusion that Motorola knew that its behavior had been considered questionable could support a bad faith determination as to Motorola’s continuing conduct. At trial, Microsoft emphasized that Motorola continued to pursue its injunctive actions in the ITC and in the Wisconsin district court after the FTC initiated its investigation and after the district court imposed a temporary restraining order against enforcing the German injunction.

Heiner’s testimony did—impermissibly—go beyond the scope of Judge Robart’s admissibility ruling. When asked how the FTC investigation concluded, instead of stating that the parties entered a consent decree—which is what counsel had represented to the judge Heiner would say—Heiner testified that the FTC had “concluded” that Motorola “reneged” on its agreements. Judge Robart twice instructed the jurors to disregard the statement and informed them, reading from the consent decree, that the settlement “does not constitute an admission by Motorola Mobility or Google that the law has been violated as alleged in the complaint.” Before Heiner testified, the court had twice informed the jury that “allegations in a ... government investigation, are not proof of the truth of the matter alleged.” These prompt, clear instructions were adequate to cure the prejudicial impact of Heiner’s comments. See B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1105 (9th Cir.2002).

As to its Rule 403 argument, Motorola cites two occasions on which this court has upheld a district court’s decision to exclude *1056 evidence of a no-fault consent decree after balancing its probative value against the danger of prejudice. See Gribben v. United Parcel Serv., Inc., 528 F.3d 1166, 1172 (9th Cir.2008); Kramas v. Sec. Gas & Oil Inc., 672 F.2d 766, 772 (9th Cir.1982). In both cases, we deferred to the district court’s decision to exclude the evidence, which decision was “committed to the trial court’s sound discretion.” Kramas, 672 F.2d at 772; see also Gribben, 528 F.3d at 1172. Further, in both cases, the consent decrees in question were at most minimally probative, as they related to actions markedly different from those at issue in the later litigation. See Gribben, 528 F.3d at 1172; Kramas, 672 F.2d at 772. Gribben, for example, involved a retaliatory employment action claim; the employer’s prior no-fault consent decree with the EEOC was “irrelevant” to the question whether the plaintiff-employee was terminated in retaliation for filing his own complaint with the EEOC. Id. at 1172.

Here, by contrast, the evidence the judge authorized was undoubtedly probative. The FTC investigated Motorola for the same conduct cited in Microsoft’s breach of contract complaint, and for the same reason: The conduct was alleged to be a violation of Motorola’s good-faith RAND obligations. There was, undoubtably, a risk of prejudicing the jury in admitting testimony about the FTC investigation. Although the jury was instructed that the FTC made no finding of liability, the jurors might have assumed the agency would not have initiated an investigation if they did not believe Microsoft’s complaint was true. Similarly, while the jury was told that Motorola’s agreement to the consent decree was not an admission of liability, they may have inferred from the decree that Motorola believed its actions were wrongful.

Any prejudicial effect of the order, however, was likely cumulative of the impact of Heiner’s testimony about the “public interest statement” the FTC sent to the ITC around the same time as the investigation, expressing its “concern [ ] that a patentee can ... seek an exclusion order for infringement of [a] RAND-encumbered SEP as a way of securing royalties that may be inconsistent with the RAND commitment.” Motorola did not challenge Heiner’s testimony about the FTC’s statement to the ITC on appeal. Thus, testimony about the FTC order was largely cumulative and so not prejudicial.

In short, Heiner’s testimony on the FTC investigation and subsequent consent decree was clearly both probative and potentially prejudicial. But under Rule 403, evidence is to be excluded only “if its probative value is substantially outweighed by a danger of ... unfair prejudice.” Fed.R.Evid. 403 (emphasis added). And in determining whether the district court abused its discretion in applying that Rule, we employ a “highly deferential” standard of review, Boyd v. City & Cnty. of S.F., 576 F.3d 938, 949 (9th Cir.2009), reversing only if the exercise of discretion was “manifestly erroneous and prejudicial,” Wagner v. Cnty. of Maricopa, 747 F.3d 1048, 1055 (9th Cir.2013) (quoting Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir.2002)). Here, the danger of prejudice in admitting limited testimony about the FTC investigation did not so manifestly outweigh the testimony’s probative value that admitting the evidence was an abuse of discretion.

III. CONCLUSION

With the parties’ consent, the district court conducted a lengthy, thorough bench trial on the RAND rate and range. The court analyzed that evidence in its exhaustive findings of fact and conclusions of law, in a manner consistent with the Federal Circuit’s recent approach to establishing *1057 damages in the RAND context. The court’s factual findings were properly admitted at the jury trial. The jury’s verdict was supported by substantial evidence, and its damages award was proper.

The judgment of the district court is AFFIRMED.

By JOHN R. EMSHWILLER And  GARY FIELDS

Sept. 23, 2012 10:32 p.m. ET

Two university professors last year did an experiment to explore one of the more controversial questions of criminal law: How often do innocent defendants plead guilty to crimes to avoid the risk of greater punishment if they fight and lose?

Lucian Dervan, a Southern Illinois University assistant law professor, and Vanessa Edkins, an assistant psychology professor at Florida Institute of Technology, recruited 82 college students for what they pretended was a study of problem-solving skills.

The rules barred students from collaborating during part of the study, expected to be published next year in Northwestern University law school's Journal of Criminal Law and Criminology. With the help of two student confederates, supposedly participating in the study, the researchers induced nearly half the students to violate the collaboration ban. They then accused all participants of violating the rule and offered each of them two options.

Students could fight the accusation before an academic review board. Those who lost would be reported to the faculty adviser and have to take an ethics course that could last up to a semester.

Or, they could admit violating the rules and simply be dropped from the study without credit.

The project aimed, as much as possible, to replicate conditions faced by real criminal defendants, Prof. Dervan said. The students were told the academic review board usually had 10 to 12 members, similar to the dozen on a criminal court jury. Students could present evidence in their defense.

They were told that the board handed down "guilty" verdicts 80% to 90% of the time—similar to conviction rates for defendants at trial.

Nearly 90% of the students who violated the rules pleaded "guilty." So did over 55% of those who were innocent.

Similar academic research has found false confession rates ranging from under 10% to over half, the Dervan/Edkins paper said.

No study can completely recreate the pressures criminal defendants face, including the prospect of years in prison, Prof. Dervan said. But, he added, students in his and Dr. Edkins' study showed "a strong compulsion to have the matter resolved even if it meant confessing to something that they really didn't do."

Write to John R. Emshwiller at john.emshwiller@wsj.com and Gary Fields at gary.fields@wsj.com

Please go to our Moodle course page, where you can answer Comprehension Questions #12.

The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.

To the Founding Fathers, the critical element in the system was the jury trial, which served not only as a truth-seeking mechanism and a means of achieving fairness, but also as a shield against tyranny. As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.

The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage. In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.

In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.

While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.

It was not always so. Until roughly the end of the Civil War, plea bargains were exceedingly rare. A criminal defendant would either go to trial or confess and plead guilty. If the defendant was convicted, the judge would have wide discretion to impose sentence; and that decision, made with little input from the parties, was subject only to the most modest appellate review.

After the Civil War, this began to change, chiefly because, as a result of the disruptions and dislocations that followed the war, as well as greatly increased immigration, crime rates rose considerably, and a way had to be found to dispose of cases without imposing an impossible burden on the criminal justice system. Plea bargains offered a way out: by pleading guilty to lesser charges in return for dismissal of the more serious charges, defendants could reduce their prison time, while the prosecution could resolve the case without burdening the system with more trials.

The practice of plea bargaining never really took hold in most other countries, where it was viewed as a kind of “devil’s pact” that allowed guilty defendants to avoid the full force of the law. But in the United States it became commonplace. And while the Supreme Court initially expressed reservations about the system of plea bargaining, eventually the Court came to approve of it, as an exercise in contractual negotiation between independent agents (the prosecutor and the defense counsel) that was helpful in making the system work. Similarly, academics, though somewhat bothered by the reduced role of judges, came to approve of plea bargaining as a system somewhat akin to a regulatory regime.

Thus, plea bargains came to account, in the years immediately following World War II, for the resolution of over 80 percent of all criminal cases. But even then, perhaps, there were enough cases still going to trial, and enough power remaining with defense counsel and with judges, to “keep the system honest.” By this I mean that a genuinely innocent defendant could still choose to go to trial without fearing that she might thereby subject herself to an extremely long prison term effectively dictated by the prosecutor.

All this changed in the 1970s and 1980s, and once again it was in reaction to rising crime rates. While the 1950s were a period of relatively low crime rates in the US, rates began to rise substantially in the 1960s, and by 1980 or so, serious crime in the US, much of it drug-related, was occurring at a frequency not seen for many decades. As a result, state and federal legislatures hugely increased the penalties for criminal violations. In New York, for example, the so-called “Rockefeller Laws,” enacted in 1973, dictated a mandatory minimum sentence of fifteen years’ imprisonment for selling just two ounces (or possessing four ounces) of heroin, cocaine, or marijuana. In addition, in response to what was perceived as a tendency of too many judges to impose too lenient sentences, the new, enhanced sentences were frequently made mandatory and, in those thirty-seven states where judges were elected, many “soft” judges were defeated and “tough on crime” judges elected in their place.

At the federal level, Congress imposed mandatory minimum sentences for narcotics offenses, gun offenses, child pornography offenses, and much else besides. Sometimes, moreover, these mandatory sentences were required to be imposed consecutively. For example, federal law prescribes a mandatory minimum of ten years’ imprisonment, and a maximum of life imprisonment, for participating in a conspiracy that distributes five kilograms or more of cocaine. But if the use of a weapon is involved in the conspiracy, the defendant, even if she had a low-level role in the conspiracy, must be sentenced to a mandatory minimum of fifteen years’ imprisonment, i.e., ten years on the drug count and five years on the weapons count. And if two weapons are involved, the mandatory minimum rises to forty years, i.e., ten years on the drug count, five years on the first weapons count, and twenty-five years on the second weapons count—all of these sentences being mandatory, with the judge having no power to reduce them.

In addition to mandatory minimums, Congress in 1984 introduced—with bipartisan support—a regime of mandatory sentencing guidelines designed to avoid “irrational” sentencing disparities. Since these guidelines were not as draconian as the mandatory minimum sentences, and since they left judges with some limited discretion, it was not perceived at first how, perhaps even more than mandatory minimums, such a guidelines regime (which was enacted in many states as well) transferred power over sentencing away from judges and into the hands of prosecutors.

One thing that did become quickly apparent, however, was that these guidelines, along with mandatory minimums, were causing the virtual extinction of jury trials in federal criminal cases. Thus, whereas in 1980, 19 percent of all federal defendants went to trial, by 2000 the number had decreased to less than 6 percent and by 2010 to less than 3 percent, where it has remained ever since.

The reason for this is that the guidelines, like the mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains. In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.

The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations. While much of this may be one-sided and inaccurate—the National Academy of Science’s recently released report on the unreliability of eyewitness identification well illustrates the danger—it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe overconfident, of the strength of his case.

Against this background, the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.

In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little. Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.

But what really puts the prosecutor in the driver’s seat is the fact that he—because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought—can effectively dictate the sentence by how he publicly describes the offense. For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

Brittany Murray/Long Beach Press-Telegram/AP Images

Brian Banks and his lawyer from the Innocence Project at the dismissal of his wrongful conviction on rape and kidnapping charges, Long Beach, California, May 2012. Banks, who had been a high school football star with a scholarship to USC at the time of his arrest, served five years in prison for a crime he never committed after accepting a plea bargain under the advisement of his original lawyer.

The defense lawyer understands this fully, and so she recognizes that the best outcome for her client is likely to be an early plea bargain, while the prosecutor is still willing to accept a plea to a relatively low-level offense. Indeed, in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was sixteen years.

Although under pressure to agree to the first plea bargain offered, prudent defense counsel will try to convince the prosecutor to give her some time to explore legal and factual defenses; but the prosecutor, often overworked and understaffed, may not agree. Defense counsel, moreover, is in no position to abruptly refuse the prosecutor’s proposal, since, under recent Supreme Court decisions, she will face a claim of “ineffective assistance of counsel” if, without consulting her client, she summarily rejects a plea bargain simply as a negotiating ploy.

Defense counsel also recognizes that, even if she thinks the plea bargain being offered is unfair compared to those offered by other, similarly situated prosecutors, she has little or no recourse. An appeal to the prosecutor’s superior will rarely succeed, since the superiors feel the need to support their troops and since, once again, the prosecutor can shape the facts so as to make his superior find his proposed plea acceptable. And there is no way defense counsel can appeal to a neutral third party, the judge, since in all but a few jurisdictions, the judiciary is precluded from participating in plea bargain negotiations. In a word, she and her client are stuck.

Though there are many variations on this theme, they all prove the same basic point: the prosecutor has all the power. The Supreme Court’s suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it is much more like a “contract of adhesion” in which one party can effectively force its will on the other party.

As for the suggestion from some academics that this is the equivalent of a regulatory process, that too is a myth: for, quite aside from the imbalance of power, there are no written regulations controlling the prosecutor’s exercise of his charging power and no established or meaningful process for appealing his exercise of that power. The result is that, of the 2.2 million Americans now in prison—an appalling number in its own right—well over two million are there as a result of plea bargains dictated by the government’s prosecutors, who effectively dictate the sentences as well.

A cynic might ask: What’s wrong with that? After all, crime rates have declined over the past twenty years to levels not seen since the early 1960s, and it is difficult to escape the conclusion that our criminal justice system, by giving prosecutors the power to force criminals to accept significant jail terms, has played a major part in this reduction. Most Americans feel a lot safer today than they did just a few decades ago, and that feeling has contributed substantially to their enjoyment of life. Why should we cavil at the empowering of prosecutors that has brought us this result?

The answer may be found in Jefferson’s perception that a criminal justice system that is secret and government-dictated ultimately invites abuse and even tyranny. Specifically, I would suggest that the current system of prosecutor-determined plea bargaining invites the following objections.

First, it is one-sided. Our criminal justice system is premised on the notion that, before we deprive a person of his liberty, he will have his “day in court,” i.e., he will be able to put the government to its proof and present his own facts and arguments, following which a jury of his peers will determine whether or not he is guilty of a crime and a neutral judge will, if he is found guilty, determine his sentence. As noted, numerous guarantees of this fair-minded approach are embodied in our Constitution, and were put there because of the Founding Fathers’ experience with the rigged British system of colonial justice. Is not the plea bargain system we have now substituted for our constitutional ideal similarly rigged?

Second, and closely related, the system of plea bargains dictated by prosecutors is the product of largely secret negotiations behind closed doors in the prosecutor’s office, and is subject to almost no review, either internally or by the courts. Such a secretive system inevitably invites arbitrary results. Indeed, there is a great irony in the fact that legislative measures that were designed to rectify the perceived evils of disparity and arbitrariness in sentencing have empowered prosecutors to preside over a plea-bargaining system that is so secretive and without rules that we do not even know whether or not it operates in an arbitrary manner.

Third, and possibly the gravest objection of all, the prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed. For example, of the approximately three hundred people that the Innocence Project and its affiliated lawyers have proven were wrongfully convicted of crimes of rape or murder that they did not in fact commit, at least thirty, or about 10 percent, pleaded guilty to those crimes. Presumably they did so because, even though they were innocent, they faced the likelihood of being convicted of capital offenses and sought to avoid the death penalty, even at the price of life imprisonment. But other publicized cases, arising with disturbing frequency, suggest that this self-protective psychology operates in noncapital cases as well, and recent studies suggest that this is a widespread problem. For example, the National Registry of Exonerations (a joint project of Michigan Law School and Northwestern Law School) records that of 1,428 legally acknowledged exonerations that have occurred since 1989 involving the full range of felony charges, 151 (or, again, about 10 percent) involved false guilty pleas.

It is not difficult to perceive why this should be so. After all, the typical person accused of a crime combines a troubled past with limited resources: he thus recognizes that, even if he is innocent, his chances of mounting an effective defense at trial may be modest at best. If his lawyer can obtain a plea bargain that will reduce his likely time in prison, he may find it “rational” to take the plea.

Every criminal defense lawyer (and I was both a federal prosecutor and a criminal defense lawyer before going on the bench) has had the experience of a client who first tells his lawyer he is innocent and then, when confronted with a preview of the government’s proof, says he is guilty. Usually, he is in fact guilty and was previously lying to his lawyer (despite the protections of the attorney–client privilege, which many defendants, suspicious even of their court-appointed lawyers, do not appreciate). But sometimes the situation is reversed, and the client now lies to his lawyer by saying he is guilty when in fact he is not, because he has decided to “take the fall.”

In theory, this charade should be exposed at the time the defendant enters his plea, since the judge is supposed to question the defendant about the facts underlying his confession of guilt. But in practice, most judges, happy for their own reasons to avoid a time-consuming trial, will barely question the defendant beyond the bare bones of his assertion of guilt, relying instead on the prosecutor’s statement (untested by any cross-examination) of what the underlying facts are. Indeed, in situations in which the prosecutor and defense counsel themselves recognize that the guilty plea is somewhat artificial, they will have jointly arrived at a written statement of guilt for the defendant to read that cleverly covers all the bases without providing much detail. The Supreme Court, for its part, has gone so far (with the Alford plea of 1970) as to allow a defendant to enter a guilty plea while factually maintaining his innocence.

While, moreover, a defendant’s decision to plead guilty to a crime he did not commit may represent a “rational,” if cynical, cost-benefit analysis of his situation, in fact there is some evidence that the pressure of the situation may cause an innocent defendant to make a less-than-rational appraisal of his chances for acquittal and thus decide to plead guilty when he not only is actually innocent but also could be proven so. Research indicates that young, unintelligent, or risk-averse defendants will often provide false confessions just because they cannot “take the heat” of an interrogation. Although research into false guilty pleas is far less developed, it may be hypothesized that similar pressures, less immediate but more prolonged, may be in effect when a defendant is told, often by his own lawyer, that there is a strong case against him, that his likelihood of acquittal is low, and that he faces a mandatory minimum of five or ten years in prison if convicted and a guidelines range of considerably more—but that, if he acts swiftly, he can get a plea bargain to a lesser offense that will reduce his prison time by many years.

How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.

What can we do about it? If there were the political will to do so, we could eliminate mandatory minimums, eliminate sentencing guidelines, and dramatically reduce the severity of our sentencing regimes in general. But even during the second Obama administration, the very modest steps taken by Attorney General Eric Holder to moderate sentences have been met by stiff opposition, some from within his own department. For example, the attorney general’s public support for a bipartisan bill that would reduce mandatory minimums for certain narcotics offenses prompted the National Association of Assistant US Attorneys to send an “open letter” of opposition, while a similar letter denouncing the bill was signed by two former attorney generals, three former chiefs of the Drug Enforcement Administration, and eighteen former US attorneys.

Reflecting, perhaps, the religious origins of our country, Americans are notoriously prone to making moral judgments. Often this serves salutary purposes; but a by-product of this moralizing tendency is a punitiveness that I think is not likely to change in the near future. Indeed, on those occasions when Americans read that someone accused of a very serious crime has been permitted to plea bargain to a considerably reduced offense, their typical reaction is one of suspicion or outrage, and sometimes not without reason. Rarely, however, do they contemplate the possibility that the defendant may be totally innocent of any charge but is being coerced into pleading to a lesser offense because the consequences of going to trial and losing are too severe to take the risk.

I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. For similar reasons, many federal judges (including this one) refuse to involve themselves in settlement negotiations in civil cases, even though, unlike the criminal plea bargain situation, there is no legal impediment to doing so. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation.

As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination.

The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases.

Would a plan structured along these lines wholly eliminate false guilty pleas? Probably not, but it likely would reduce their number. Would it present new, unforeseeable problems of its own? Undoubtedly, which is why I would recommend that it first be tried as a pilot program. Even given the current federal rules prohibiting judges from involving themselves in the plea-bargaining process, I think something like this could be undertaken, since most such rules can be waived and the relevant parties could here agree to waive them for the limited purposes of a pilot program.

I am under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea. But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying?

In response to:

Why Innocent People Plead Guilty from the November 20, 2014 issue

To the Editors:

Judge Jed S. Rakoff has written an excellent article about the serious failures of our judicial system and makes a number of excellent recommendations [“Why Innocent People Plead Guilty,” NYR, November 20]. He does, I think, miss a couple of important points.

As someone who had a tragic experience with the criminal justice system with my son Aaron Swartz, I know firsthand how difficult it is to get justice, let alone have the presumption of innocence.

There are many problems with the judicial system. Given the high conviction rates, it is not in the interest of criminal defense attorneys to take a case to trial. They cannot make money on the trial and because they will likely lose, their record of success will be damaged. Their interests and the interests of the prosecutor to get the defendant to plead guilty are aligned. For this reason, they often don’t examine the evidence or try to understand the defendant’s defenses.

Secondly, in a plea bargain the prosecutor never has to present the evidence in court, thus there is little risk in withholding evidence or engaging in other kinds of judicial misconduct because in a plea deal this will never come to light. Finally, the prosecutor is largely immune to any oversight or penalties for misconduct. It is remarkable that with the almost unlimited power that prosecutors have, they break the law. The example of Senator Ted Stevens shows that even minor penalties for the illegal and outrageous conduct of prosecutors were not enforced.

In my son Aaron’s case, there is also ample evidence of prosecutorial misconduct and really no avenue to deal with it. If people like Ted Stevens—a US senator—and Aaron with all his resources cannot get a fair hearing, how much worse is it for everyone else? We have a court system in the US that has a lot in common with China. This broken judicial system reflects the central failure of our society and our government.

Robert Swartz
Highland Park, Illinois

To the Editors:

Judge Rakoff’s diatribe about plea bargaining omits important facts about federal criminal prosecutions, implying innocent individuals are frequently swept into prisons. The truth is otherwise. I list just a few omissions, which I know not only from serving as a US District Court judge, but also from having been United States attorney in this district.

1.      Federal prosecutions are discretionary, with assistant US attorneys working with FBI and other federal agents in selecting, from many referrals, only those cases for prosecution in which the evidence is very strong. This easily explains a conviction rate that historically has been close to 100 percent. Although some defendants are indeed found not guilty after a trial, most defendants recognize the government has accumulated evidence that proves them guilty and thus, they plead guilty, usually earning a lower sentence by their acceptance of responsibility.

2.      Until recently, all attorneys general in both parties had adopted a policy of charging the most serious “readily provable” crime. This provides “truth in charging,” which is an important public policy to guide prosecutors in exercising their charging function to reflect the true quality of the evidence.

3.      Contrary to Judge Rakoff’s misstatement that prosecutors always have the upper hand, defendants do have a strong weapon. It is called “the presumption of innocence” and the corollary requirement that the government must prove its case beyond a reasonable doubt. In my experience, this principle has resulted in not guilty verdicts for many defendants who elected to go to trial, even though the evidence would have supported a guilty verdict.

4.      Federal judges must engage in a lengthy dialogue with the defendant and the prosecutor whenever a defendant intends to plead guilty. The judge must be satisfied not only that the plea is voluntary, but also that the defendant understands the possible sentencing parameters. The prosecutor must also satisfy the judge that the government has sufficient evidence to prove the defendant’s guilt. The prosecutor must detail that evidence on the record even though the defendant is pleading guilty. In the absence of such evidence, the judge may not accept the guilty plea.

5.      The Sentencing Guidelines were not adopted to “bludgeon” defendants, but were primarily the careful years-long work product of Senator Edward Kennedy and present Supreme Court Justice Stephen Breyer (when he was a federal appellate judge) and were adopted largely out of concerns about significant disparities in the sentencing of different defendants across the United States with similar backgrounds who had committed similar crimes.

6.      Mandatory minimum sentences were adopted by Congress to reflect Congress’s viewpoint that a uniform minimum sentence should apply to individuals who commit serious crimes. These mandatory minimums exist not only in drug cases, but also for firearms offenses, arson offenses, kidnapping offenses, and similar serious crimes. Whether judges “like” mandatory minimums is irrelevant. Congress makes the law. Many believe these laws deter crime.

7.      Although the federal Sentencing Guidelines were mandatory for some years, they are now only “advisory,” and judges are able to sentence above or below the guidelines by making appropriate factual findings.

8.      Notwithstanding the advisory sentencing guidelines, and mandatory minimums, individuals can receive “downward departures” from the sentence that would otherwise apply by cooperating with prosecutors. This concept is employed by prosecutors who are willing to work hard to make better cases, which promotes sound public policy by allowing prosecution of all individuals about whom prosecutors acquire evidence of guilt. As US attorney, I adopted a very strong policy of encouraging cooperation that resulted in downward departures in at least one third of all sentences imposed in this district.

No judge wants to see an innocent person prosecuted, convicted, or sent to prison. A criminal justice system must ensure that fundamental principle. Pretending that plea bargains or sentencing guidelines have led to the imprisonment of the innocent is not just incorrect, but impugns the honesty of prosecutors and the diligence of judges.

Michael M. Baylson
United States District Judge
Philadelphia, Pennsylvania

Jed S. Rakoff replies:

Barely a month goes by without someone who pled guilty being exonerated and released from prison. For example, the National Registry of Exonerations recently established by the University of Michigan Law School currently lists 162 such persons, or nearly 11 percent of the 1,476 post-conviction exonerations that have been publicly reported since 1989. If Judge Baylson’s views of the current system were correct, these figures would be zero. Instead, they are just the tip of the iceberg.

To say, as Judge Baylson does, that “most” defendants who plead guilty are in fact guilty simply dodges the issue of how many innocent people are being coerced into pleading guilty by the potential for draconian sentences effectively controlled by the prosecutor. And it is ironic that Judge Baylson should seek to justify federal prosecutors’ prior policy of charging the most serious provable crime as “truth in charging” when, as the Aaron Swartz case mentioned by his father and described below illustrates, the policy often has served not as a reflection of what everyone understood was the true nature of the alleged crime, but as a device to help extract a guilty plea to a lesser offense. Indeed, it was partly this effect that led the current attorney general to abandon the policy, stating that in many cases such a policy was not “appropriate.”

Equally puzzling is Judge Baylson’s defense of mandatory minimum sentences as an exercise of Congress’s legislative authority. That, of course, is correct; but it hardly means that mandatory minimums, like the sentencing guidelines, aren’t being used as weapons by prosecutors to coerce guilty pleas. And Judge Baylson says not one word about why, if this were not so, the precipitous decline in the percentage of cases going to trial (from more than 15 percent to less than 3 percent) has occurred simultaneously with the advent of mandatory minimum sentences and sentencing guidelines.

Judge Baylson suggests both that the defendant has a strong weapon in the form of the presumption of innocence and that the prosecutor has a high burden of proof. But this suggestion really only comes into play if the defendant is willing to take the risk of going to trial and likely suffering a huge sentence if he loses. At the plea bargain stage, moreover, the prosecutor not only credits the un-cross-examined evidence received from his police force but also knows that, since 97 percent of the cases will be resolved by pleas, the prosecutor’s own risk of losing is minimal.

As for the “lengthy dialogue” that a defendant must engage in when pleading before a judge, in actuality most of the dialogue consists of the defendant being asked by the judge to waive a host of constitutional rights. When, at the very end, the defendant is asked to “allocute” to the facts of the offense, he typically reads a short, bare-bones statement drafted by his lawyer that is sufficient to meet the minimum requirements for acceptance of the plea, and the government, for its part, often provides only the most conclusory statement of additional facts.

Even when this is not the case, since the defendant has already decided to plead guilty (and thus avoid the severe risks of going to trial under current law), he is prepared to say whatever is necessary to get the judge to accept the plea; and the judge, hearing nothing but agreement between the parties, is in no position to suppose otherwise.

Judge Baylson concludes by stating that “no judge wants to see an innocent person prosecuted, convicted, or sent to prison.” That, again, is true. But do we really need the indisputable proof of the hundreds of DNA-based exonerations to show that, nevertheless, the tragedy of innocent people being wrongfully convicted regularly occurs? Would it not be better to try to ferret out the reasons for such miscarriages of justice?

Finally, my heart goes out to the other letter-writer, Robert Swartz, the father of Aaron Swartz. According to published reports, Aaron, while a research fellow at Harvard, was arrested in 2011 after allegedly downloading academic journals from an MIT digital repository without permission. Federal prosecutors charged him with two counts of wire fraud and eleven counts of violation of the Computer Fraud and Abuse Act, carrying a cumulative maximum penalty of fifty years in prison, $1 million in fines, and various other penalties. Prosecutors then offered to recommend a prison term of six months if Swartz would plead guilty to certain of the charges. Swartz declined, and shortly thereafter hanged himself.