Conroe Criminal Defense Attorney - Rules of Evidence Series RULE 407

Conroe Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law

Texas Rule of Evidence 407 is called the subsequent remedial measures rule and it says that you can't admit evidence that someone changed their business practices or made their property or conditions of work safer in order to prove that they weren't safe at the time of the claim in your lawsuit. This is the rule because if that type of evidence could be used it would incentivize businesses to not make their practices safer for fear that this would be used against them in court. This in turn could lead to more injury or damage to property related to unsafe business practices.

This is primarily a civil rule and does not generally come up in a criminal law context.

There is a notable exception to this rule in that evidence of a "subsequent remedial measure" can be offered to prove ownership, control, or feasibility of precautionary measures, or a written notification like a recall product warning letter can be used to show that the product was in fact defective.

For Example:

You would not be able to admit evidence that a business started putting salt on their steps during the winter time to prove that the absence of putting salt on their steps was in fact negligence.

However if that same company alleged at trial that it would be "impossible" to put salt on their steps then you could offer the evidence that they have already begun doing so to rebut the claim that it was not feasible.

Similarly if a business did not keep up with mowing and maintaining a filed and numerous dangerous creatures started inhabiting the area; then at trial they claimed that they did not own or manage the filed, then you could show that they arranged for the subsequent mowing of the field to show ownership or control of the premises.

Rule 407. Subsequent Remedial Measures; Notification of Defect

(a) Subsequent Remedial Measures.

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.

(b) Notification of Defect.

A manufacturer’s written notification to a purchaser of a defect in one of its products is admissible against the manufacturer to prove the defect.

Comment to 2015 Restyling: Rule 407 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc.