notes

Evidence Course
Professor Peter Tillers

Miscellaneous Relevance Rules: Exercises, Notes & Issues
(to be reviewed and perhaps amended for fall semester of 2007)

Rough Class Notes Intended Solely for the Use of

Students in Tillers' Course in Evidence

(Do not reproduce these notes without the express written permission of the author, Peter Tillers. Thank you!)

Problem 1

TT, Tenacious Tenant, v. LL, Lordy Landlord, for negligence. On June 1, 2004, TT fell down a flight of stairs in the building that houses the apartment that TT rented from LL. TT avers that he fell after tripping over a frayed carpet on the stairs. LL denies negligence and he denies the carpet was frayed.

TT offers to show that LL purchased an insurance policy that insured LL against liability resulting from falls down those stairs.

Objection

Sustained: Rule 411 (insurance to show negligence)

Problem 2

TT offers to show that LL had no liability insurance for his tenants' falls on stairs.

Objection

Sustained: Rule 411 (applies to the use of both evidence of insurance and absence of insurance; theory: absence of insurance is being offered to show LL's negligence or "wrongful conduct." [What wrongful conduct is that -- the conduct of not having liability insurance?])

!Note that use of absence of insurance to show wrongful conduct is the reverse of the way that evidence of insurance is ordinarily used. Does that make any difference? In any case, on what theory can absence of insurance tend to show negligence? And can you have it both ways: both insurance and absence of insurance tend to show negligence?

Problem 3

LL offers to show that TT has a homeowner's policy that insures him against injuries resulting from falls on stairs in the building.

Objection: Rule 411

Argument: The evidence of the homeowner's policy is apparently being offered to show that TT was also negligent. Rule 411 bars the evidence. It does so even though the evidence is being offered to show a plaintiff's negligence or wrongful conduct. Advisory Committee Note to Rule 411: "The rule is drafted in broad terms so as to include contributory negligence or other fault of the plaintiff as well as fault of the defendant."

But suppose LL argues: "Look at the pleadings, your Honor. My defense is not contributory or comparative negligence; my only defenses are that (i) I wasn't negligent and (ii) TT has no legally-compensable injury. Hence, I'm not trying to show that TT was negligent; I'm just trying to establish that TT will be compensated by his insurer for his injuries." Suppose that the trial judge agrees that the fault of TT is not in issue but suppose also that the trial judge nevertheless excludes the evidence of the homeowner's policy.

What are the possible explanations for this ruling?

They are:

1. the evidence is immaterial

Perhaps because of the collateral source rule, the fact that LL wants to establish -- that TT received compensation for his injuries from a collateral source, his insurer -- is immaterial as a matter of substantive law; and, hence, evidence tending to show this legally-immaterial fact is inadmissible. (The same point would be phrased differently under the FRE -- the evidence would be characterized as "irrelevant" -- but the basic principle would be the same. [Please explain why.])

2. the evidence is unduly prejudicial

Theory: jury will infer TT's negligence despite being told not to do so

[But question: If payments by an insurer do reduce the amount of compensation that TT can recover, can the trial judge exclude the evidence as unduly prejudicial? Answer: No.]

Problem 4

TT offers to show that LL purchased an insurance policy that insured LL against liability resulting from falls down those stairs.

In this situation the evidence of LL's insurance is not barred by Rule 411. Liability insurance is inadmissible to show negligence or wrongful conduct, but evidence about insurance is not barred when it is offered when offered to show something other than negligence or wrongful conduct. Rule 411 expressly mentions "ownership or contro" as a purpose for which evidence about insurance is permissible. That's the purpose for which the evidence is probably being offered here.

Problem 5

TT also sues the manufacturer of the frayed carpet, CC, or Carpet Creator. TT's legal theory of recovery is a manufacturer's liability for harms caused by an unreasonably dangerous product, here the carpet. TT offers to show that after his fall CC removed the carpet on which TT fell and had a new carpet installed.

CC argues that the evidence is inadmissible. It argues that Rule 407 bars this evidence of its subsequent remedial measure, the removal of the old carpet and installation of new carpet. TT responds, "Rule 407 does not apply because that Rule provides that repairs are not admissible to show negligence or culpable conduct." TT adds, "I am not offering evidence of CC's post-accident behavior to show CC's culpability or wrongful conduct. I am proceeding on a theory of strict liability. My claim requires no showing of culpability or wrongfulness on CC's part."

TT's argument may or may not have succeeded in the federal courts before Nov. 30, 1997. But it would not work in a federal trial today because in 1997 FRE 407 was amended to eliminate this theory for evading the prohibition encapsulated in Rule 407. However, TT's argument might still work in states that have the old version of Rule 407.

Rule 407 was amended in 1997 to prohibit the use of subsequent remedial measures to show a "defect in a product" or a "defect in a product's design." (FRE 407 now also prohibits the use of such evidence to show "a need for a warning or instruction." And the amended Rule preserves the original prohibition against the use of subsequent remedial measures to show negligence or culpable conduct.) The Advisory Committee observed that before the amendment there had been a split in the federal circuits about the admissibility of repairs in so-called strict liability actions.

·The previous version of the Rule had barred the use of subsequent remedial measures only to show "negligence or culpable conduct." How do you suppose the federal courts that barred subsequent remedial measures in strict liability cases under former Rule 407 squared that result with the language of former Rule 407, which applied only if the measures were offered to show negligence or culpable conduct?

Problem 6

TT, LL's tenant, avers that he fell and injured himself in LL's Macabre Apartment Building on June 1, 2004, after tripping on the "Macintosh" carpet in the Macabre Buildng. TT further avers that LL negligently used carpeting -- Macintosh carpet -- in the Macabre Apartment Building even though LL knew that Macintosh was defective and unreasonably dangerous. At the trial of TT's claim against LL, TT offers to show that on April 1, 2004, GG, a tenant in LL's Morbid Apartment Building, fell and injured himself after tripping on the Macintosh carpet in the Morbid Apartment Building and that on May 1, 2004, LL removed Macintosh carpet in the Morbid Apartment Building and installed a new carpet in Morbid.

·Rule 407 applies to evidence of subsequent remedial measures. The issue presented here is whether a repair that preceded the accident that led to the lawsuit between LL and TT is or is not a subsequent remedial measure.

·Federal Rule of Evidence was amended in 1997. The Advisory Committee's Note about the 1997 states:

The [1997] amendment makes two changes in the rule. First, the words "an injury or harm allegedly caused by" were added to clarify that the rule applies only to changes made after the occurrence that produced the damages giving rise to the action. Evidence of measures taken by the defendant prior to the "event" causing "injury or harm" do not fall within the exclusionary scope of Rule 407 even if they occurred after the manufacture or design of the product.

Before the 1997 amendment, Rule 407 had referred only to "measures" which "if taken previously" would have made "the event" less likely to occur. This left the Rule open to the interpretation that remedial measures taken after some similar but prior accident or wrongdoing would be inadmissible under the Rule; the former version of Rule 407 did not make it unmistakably clear that the “event” mentioned in the Rule could not be a prior similar accident or wrong.

·Note that some States still adhere to the original version of Federal Rule 407 and that some of these States still bar subsequent remedial measures following a similar event or occurrence.

Problem 7

Revert to the original action in which the only parties are TT and LL. As before, TT, Tenacious Tenant, brings a civil action against LL, Lordy Landlord, for negligence. On June 1, 2004, TT fell down a flight of stairs in the building that houses the apartment that TT rented from LL. TT avers that he fell after tripping over a frayed carpet on the stairs. LL denies negligence and he denies the carpet was frayed.

At the trial TT offers to show that the day after the accident LL posted a notice on the stairs saying, "Caution! Frayed carpet!"

LL objects. He relies on Rule 407.

TT responds:

Your Honor, the words "subsequent remedial measures" are just another way of saying "subsequent repairs." That was what the rule was called at common law; it was called the rule barring evidence of subsequent repairs. FRE 407 simply codified that common law rule. But your Honor, a sign is not a "repair." A repair would be a step such as fixing the defective carpet. Therefore the evidence of the notice is not barred by Rule 407.

Is TT's argument good or bad?

TT's argument might have worked at common law, but it would not work under the FRE. The choice of the phrase "subsequent remedial measures" instead of "subsequent repairs" was apparently deliberate. The purpose of Rule 407, it was apparently thought, is to encourage (or not discourage) post-accident measures to increase safety. The Advisory Committee Note refers to measures (e.g., changes in company rules) that do not involve "repairs." Even at common law many courts held that such "measures" -- measures not involving physical repairs or physical reconstruction -- were within the ambit of the prohibition against evidence of subsequent "repairs." (Question: Can a post-accident safety study be a "subsequent remedial measure"?)

Problem 8

Once again, let's consider the original action of Tenacious Tenant against Lordy Landlord. TT fell down the stairs in the building that houses his apartment. TT avers that TT was negligent and that the carpet was frayed. TT denies this. TT offers to show that immediately after TT fell down the stairs, LL rushed up to him and said, "My gosh, TT. You sure took a tumble. You fell over that nasty worn carpet. Are you o.k.? I'd better take you to the hospital. I like to keep my tenants happy and you sure look like you need help."

Main Question I: Is LL's statement to TT barred by Rule 408? Is it barred as an offer to compromise?

Sub-question: Was LL's offer (if any) made in an effort to achieve a compromise, a settlement? [Why is this sub-question important?]

Answers: It's not clear from the facts that at the time LL made the offer there was a dispute about either the validity of TT's claim or the amount of TT's claim. The usual ("legalistic"?) interpretation of Rule 408 is that there has to be a dispute, either about the validity of a claim or its amount. The difficulty here is that when LL made his statement(s) it was not yet clear that TT was even making a claim against LL. Hence, on this conventional understanding of the requirements of the Rule 408, Rule 408 cannot apply.

Main Question II: Well, if LL's statements to TT are not barred by 408, are they barred by Rule 409? [Please note how cleverly I have slithered from referring to LL's "statement" to TT to referring to LL's "statements" to TT. Do you suppose I have an ulterior purpose in mind?] Do LL's statements amount to "furnishing or offering ... medical, hospital, or similar expenses"?

Further Questions & Comments:

(1) Here again there is (I shall assume) no "dispute" (as yet). Does that matter for purposes of Question II? Answer: No. Unlike Rule 408, Rule 409 does not use the word "dispute."

(2) But does Rule 409 apply only to the furnishing or offering of "expenses"? If so, does the furnishing of a medical or similar service or good amount to the furnishing or payment of an “expense”? (It's hard to see why it should make a difference whether someone pays for a service or good or whether someone provides a service or good. But there you have it. ["It" = the language of Rule 409.])

Cf. Holguin v. Smith's Food King Properties, Inc., 105 N.M. 737, 737 P.2d 96 (Ct. App. 1987) (excluded evidence included an apparent offer to take the injured person to a hospital).

(3) Note that the same evidence may be barred by more than one Rule (e.g., Rule 408 AND Rule 409). For example, payment of medical expenses as part of a compromise or settlement might be barred by both Rule 408 and 409.

(4) The Advisory Committee Note states that not all statements made in connection with offering to pay or paying medical expenses are inadmissible:

Contrary to Rule 408 ..., the present rule [409] does not extend to conduct or statements not part of the act of furnishing or offering or promising to pay.

Hence, statements such as "You sure took a tumble" are apparently not barred by Rule 409 (Only statements such as "I'd better take you to the hospital" and "Here, take these twenty $100 bills for your medical expenses" are barred by Rule 409.)

But why?

The answer in the Advisory Committee Note:

Communication is essential if compromises [emphasis added] are to be effected, and consequently broad protection of statements is needed. This is not so in cases of payments or offers or promises to pay medical expenses, where factual statements may be expected to be incidental in nature.

Result: The Good Samaritan gets shafted while the self-seeking bargainer does not.

But note that some jurisdictions have broadened the prohibition against the use of the conduct -- including the verbal conduct -- of Good Samaritans to show liability for injury.

(5) Observe that in some states factual statements such as "You sure took a tumble" are not even barred by Rule 408. To be barred in those states such statements had to be "hypothetical" or had to be made expressly "without prejudice." But Congress rejected this approach. See Advisory Committee Note to Rule 408, adopting the view of Senate Committee on the Judiciary. (Personal opinion: On this point I'm not sure Congress took the right step. It may be a good thing to require lawyers to provide relatively unambiguous indications of the purpose of their conversations and statements, to lay down "markers" indicating the nature and purpose of their conversations and dealings with opposing lawyers. But I admit that it would plainly be unwise-- it would be a snare for the unwary -- to require that lay people engaged lay down such markers when they engage in settlement negotiations.)

Problem 9

GG testifies that the carpet on the stairs was in excellent condition on June 1, 2004, the day that TT fell down the stairs. TT offers to show that LL paid for GG's medical expenses after GG fell down the stairs on April 1, 2000.

TT is attempting to attack GG's credibility by showing GG's bias or interest. TT's theory of impeachment is that GG is inclined to testify in favor of LL because LL once paid GG's medical expenses. LL may argue that evidence of his payment of GG's medical expenses is barred by Rule 408, the rule limiting the use of statements made during settlement negotiations. If LL makes this argument, TT may respond -- and effectively so -- by pointing out that Rule 408 does not bar evidence of "furnishing ... a valuable consideration" [here, money for GG's medical expenses] when the evidence is offered to show anything other than "liability for or invalidity of [a] claim or its amount" and that Rule 408 expressly allows the use of evidence of the furnishing of a valuable consideration to prove the "bias or prejudice of a witness."

TT also seems to have an effective rejoinder to a different theory for the inadmissibility of the payment made to GG: the facts (as I have stated them here) do not show that LL's payment of GG's medical expenses was done pursuant to the settlement of an existing dispute. If so, as we have already seen, Rule 408 does not apply.

Note that the rule barring evidence of compromises and settlement negotiations DOES bar evidence of compromises and settlement negotiations with third parties. See, e.g., the portion of the Advisory Committee Note that makes the point that the portion of Rule 408 that bars evidence of consummated compromises will ordinarily bar only evidence of settlements with third persons. (This is because a fully consummated compromise with a party to the lawsuit will make a trial unnecessary [but not impossible -- because there can be consummated compromises of parts of claims and controversies].)

The statement in the preceding paragraph may be a bit overconfident or overbroad. There is some disagreement about whether evidence of settlements or settlement efforts involving nonparties is within the prohibition enunciated in Rule 408. But at least two highly respected treatises assert that the better view is that "compromise conduct" of nonparties does fall -- at least sometimes -- within Rule 408.

It may not be easy to imagine a situation in which a settlement or settlement behavior of a nonparty is relevant to the liability of a party or the amount of that liability. But one author of an Evidence treatise was kind enough to provide an example:

...P institutes a negligence action against D following an automobile accident in which their vehicles collided. In the course of discovery, D learns that P had entered into discussions with X, the driver of a third car, during which X had offered a sum in exchange for P’s agreement not to make X a party in any suit. Assume that either P and X reached agreement or that no agreement was reached but that P declined to sue X. In either case, X is neither a party to the suit between P and D nor is he called as a witness at the trial. Is evidence of any compromise behavior by X admissible in the action? Presumably, D would wish to offer such evidence in order to show that another party might have been responsible; such evidence will often be relevant for such purpose and may possess high probative value. (David Leonard, SELECTED RULES OF ADMISSIBILITY §3.7.1 at 3:65 (1996) (footnote omitted)).

If it turns out that Rule 408 (compromises) does not bar the use of LL's payment of GG's medical expenses because LL's payment is offered to impeach GG, does Rule 409 (medical expenses) do so? (Keep in mind that Rule 409 states only that evidence of payment of medical expenses is inadmissible to prove liability; and Rule 409 is not limited to the use of such evidence to prove matters such as "negligence" or "culpable conduct.")

Issue 1: Suppose TT again seeks to use this payment to impeach GG. But now we're dealing with Rule 409 rather than Rule 408. Unlike Rule 408, Rule 409 does not expressly exempt evidence that is offered to show "bias or prejudice of a witness"; and, more generally, Rule 409 does not expressly say that evidence of medical payments is admissible if the evidence is offered to show something other than liability. Does this matter?

The Rule does say that payment of medical expenses is barred when offered to show "liability." Is the implication that evidence of payment of medical expenses is barred only when it is offered for that purpose? But if so, how much room for wiggle does that limitation leave? Because -- after all -- isn't it true that payment of medical expenses is being offered to defeat evidence tending to negate LL's liability by attacking and undermining the credibility of LL's witness and isn't it therefore true, by definition, that such impeaching evidence is being offered in an attempt to establish LL's liability? Furthermore, the contrast between the language or Rules 408 and 409 is striking, isn't it (since Rule 408 expressly sanctions the use of compromise behavior evidence to impeach a witness while 409 has no such proviso and does not even say that medical expense evidence is admissible for a purpose other than to show liability)?

Despite these difficulties and issues, courts apparently have occasionally allowed parties to use medical expense payments by a party to impeach a witness. But the question of whether medical expense payments can be used to impeach witnesses is not entirely settled. So says David Leonard, the author of the treatise quoted above. See id. § 4.13.4(b). Compare Mauet & Wolfson, TRIAL EVIDENCE § 8.4 at 247 (1997) (Rule 409 "does not have express exceptions, although it is obvious that such evidence can be offered for a proper purpose other than proving liability or damages, such as ... impeaching someone's credibility.")

Issue 2: But in this situation does the Rule [Rule 409] apply at all? The Rule bars the use of payment to prove liability "for the injury" (emphasis added). Does the definite article "the" signify that the payment of expenses or the offer to pay expenses must be an offer to pay for the medical expenses occasioned by the injury that gave rise to the lawsuit? The difficulty here is that Rule 409 does not expressly say that the injury that occasioned the payment of medical expenses must also have been the injury that occasioned the lawsuit in which the payment of medical expenses is offered as evidence.

The position of David Leonard (the treatise writer quoted above) on this issue seems to be that the law is not entirely clear about whether payments of medical expenses to a nonparty can fall within the prohibition stated by Rule 409. His analysis emphasizes the phrase "liability for the injury." Rule 409 bars evidence of medical expense payments only when they are used to show "liability for the injury." The question is whether the phrase "the injury" refers to the injury upon which the plaintiff's lawsuit is based. Leonard states, "Though this may indeed be the most reasonable way to interpret the language of the rule [...,] no cases have been found excluding the evidence when offered to prove another injury [and] such an interpretation would be unfortunate because the policy behind the rule applies regardless of whose injury the evidence is offered to prove." Id § 4.12.1 at 4:84.

Problem 10

After TT's fall on June 1, 2004, two police officers arrive at the premises and conduct an investigation. LL rushes up to them and states, "My gosh, officers, you aren't going to prosecute me, are you? I'll tell you what, if you don't charge me with a Class 1 misdemeanor of extreme indifference to human health and safety resulting in an injury, I'll plead guilty to a violation of Housing Code Section 27123.45.876(b)(xviii). That's a Class 2 misdemeanor. I won't have to do any jail time for that. I admit I was careless. But I can't afford jail time. What do you say? Do we have a deal?" The two officers, in shock, simultaneously said, "No way, friend."

Are LL's statements barred by Rule 410 (statements by a defendant made during a plea discussion)? The answer is "no." Not every plea discussion will do. Under Rule 410(4) the plea discussions have to be with "an attorney for the prosecuting authority." The police officers are not attorneys, they are not prosecuting attorneys [though in some places police officers DO officially serve as prosecuting attorneys for some minor offenses].

·The original version of Rule 410 lent itself to the possible interpretation that statements made to police officers might be barred by Rule 410; the original version of Rule 410 did not expressly require that the statements be made to a prosecuting attorney. The Advisory Committee Note to the 1980 Amendment states, "[A] literal reading of the [original] language of [Rule 410 and the original and substantially identical language of Federal Rule of Criminal Procedure 11(e)(6)] could reasonably lead to the conclusion that a broader rule of inadmissibility obtains. ... [I]t might be thought that an otherwise voluntary admission to law enforcement officials is rendered inadmissible merely because it was made in the hope of obtaining leniency by a plea." This conclusion, the Committee makes clear, is done away with by the amended versions of FRE 410 and Federal Rule of Criminal Procedure 11(e)(6).

Yeah, yeah, yeah!?! What about FRE 410(1) & (2)? Those subdivisions don't say anything about the identity of the person to whom plea bargaining statements are made. And neither does subdivision (3). So how can you say that to be protected by Rule 410, statements during plea bargaining have to be made to a prosecuting attorney?

The proper answer to this question and taunt is, I think, an admission that (i) we are looking at a very badly drafted Rule and (ii) the issues raised by the preceding question go beyond the scope of this course and can be adequately considered only in a course in criminal procedure. Suffice it to say that the taunting question posed above requires an interpretation of the language in subdivision (3), and the language of subdivision (3) suggests that in some instances figuring out the answer to the question requires an interpretation of the language of Federal Rule of Criminal Procedure 11 and that in some instances figuring out the answer requires an interpretation of certain state rules of criminal procedure. For a full discussion of these matters see David Leonard, SELECTED RULES OF ADMISSIBILITY Chapter 5 (1996). We will not explore these complex issues in this course. Be all of this as it may, we shall assume -- solely for purposes of this course -- that amended Federal Rule 410 does not apply to statements made by defendants to law enforcement officers in the hope of arriving at a plea agreement in a criminal proceeding -- unless, that is, the law enforcement officer or officers to whom such statements are made are "attorney[s] for the prosecuting authority." See discussion in Rice's CB at 276-277.

Problem 11

Rule 410 does not apply if a plea of guilty is agreed to (and not withdrawn). Hence, statements made by a defendant or his lawyer during plea bargaining are in general not barred by Rule 410 if the plea bargaining is successful and results in a plea of guilty. (Cf. Park § 5.56: "Like any other statement of a party, a guilty plea not withdrawn is admissible as an admission." [footnote omitted])

Rule 408, by contrast, does apply to evidence of settlements in civil cases and to statements made in the course of settlement negotiations in civil cases. Why the difference? Why isn't Rule 410, in this respect, more like Rule 408? Why doesn't Rule 410 exclude evidence of guilty pleas and of statements made during negotiations that result in unwithdrawn guilty pleas? The Advisory Committee did not discuss this question. I'm not entirely sure that there is a satisfactory answer to this question. (One possible though not entirely satisfactory answer is that most criminal defendants are judgment proof. Another possible though also not entirely satisfactory answer is that the issue of civil liability is secondary in the minds of people who are contemplating whether to plead guilty.) See discussion in Rice's CB at 272-273.

Note that recidivism statutes and sentencing guidelines can have the effect of enhancing the criminal punishment of people who have been previously convicted of crimes.

***

Suppose a judgment of guilty is entered upon Albert Accused's plea of guilty to larceny; Accused is convicted, upon his guilty plea, of stealing a car from Valiant Victor. Suppose Valiant Victor brings a civil action in the nature of trover against Albert Accused.

Question 1: Does Albert's criminal conviction have res judicata effect (i.e., does claim preclusion apply)?

Answer: Well, it seems not. The parties are different.

Question 2: Well then, does a conviction pursuant to a guilty plea have collateral estoppel effect (i.e., does issue preclusion occur)?

In many and perhaps in most jurisdictions a judgment can have collateral estoppel effect even though the parties as well as the claims are different in later lawsuit. Hence, can a judgment of conviction based on a plea of guilty be used in a civil action to prove facts -- to preclude relitigation in the civil action of facts --that were essential to the conviction?

Answer: Standard black-letter law suggests that the answer is "no" on the ground that in the case of a conviction following a plea of guilty there was perhaps no actual (adversary) litigation, no adjudication "on the merits" of any factual issues after actual (adversary) litigation. There was just a guilty plea.

The above answer is probably correct. But cf. But cf. Perry v. Capitol Air, Inc., 649 F.Supp. 1260 (D. Puerto Rico, 1986); Walker v. Schaeffer, 854 F.2d 138 (6th Cir. 1988) (plea of nolo contendere given collateral estoppel effect, a questionable result; but the questionable conclusion rests on the possibly-sound premise that judgments based on pleas of guilty can be given collateral estopel effect). For purposes of this course view the answer to Question 2 as unsettled. (I can imagine an argument that the judicial hearing preceding the entry of a plea of guilty amounts to an "adjudication on the merits" of at least some facts. Furthermore, there are variations in the law of collateral estoppel from jurisdiction to jurisdiction. We will avoid these complications and issues in this course.)

Question 3: Well, if a conviction based on a plea of guilty does not have res judicata or collateral estoppel effect, can any use be made of the plea and the conviction?

Yes. The plea of guilty is an "admission."

Question 4: So the guilty plea is functionally equivalent to res judicata or collateral estoppel?

Right?

Wrong! The guilty plea is an "evidentiary admission" rather than a binding "judicial admission" of the sort that aparty might make for purposes of the action; an evidentiary admission works quite differently, for example, than does the response "admitted" to a formal request for an admission in a civil action. An evidentiary admission, unlike a judicial admission, is viewed as just another form of evidence. Evidence can be offered to contradict an evidentiary admission, and the trier of fact is free to conclude that the matter seemingly admitted by an evidentiary admission is not in fact true. Hence, if a plea of guilty to a criminal charge is submitted into evidence in a civil action on the theory that the plea is an evidentiary admission, the party making the admission -- the defendant in the criminal action -- is free in the subsequent civil action to introduce evidence to contradict his own admission and she is free to try to convince the trier of fact in the civil action that the matter admitted by his guilty plea (in my hypothetical, the matter admitted is larceny) is not in fact true. For further discussion see 18 Charles Wright et al., Federal Practice and Procedure § 4474, at 748 (1981).

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