Supreme Court of Kentucky Holds Subsequent Remedial Measure Rule Can Apply in Criminal Cases
Similar to its federal counterpart, Kentucky Rule of Evidence 407 provides that
When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event 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.
It is clear that Rule 407 applies in civil cases, but does it apply in criminal cases? As I’ve noted before, courts are split on the issue. Now, the Supreme Court of Kentucky has weighed in on the issue.
In Pozo-Illas v. Commonwealth, 2023 WL 2623213 (Ky. 2023), the court held as follows:
“Although denominated ‘rules,’ the elements of the Kentucky Rules of Evidence were enacted as statutes by the Kentucky General Assembly.”
In construing a statute, it is fundamental that our foremost objective is to determine the legislature’s intent in enacting the legislation. To determine legislative intent, we look first to the language of the statute, giving the words their plain and ordinary meaning. Further, we construe a statute only as written, and the intent of the Legislature must be deduced from the language it used, when it is plain and unambiguous[.]
Moreover, statutes must be read in conjunction with statutes of similar import and relevance. That said, KRE 107 provides that [t]he Kentucky Rules of Evidence shall take effect on the first day of July, 1992. They shall apply to all civil and criminal actions and proceedings originally brought on for trial upon or after that date and to pretrial motions or matters originally presented to the trial court for decision upon or after that date if a determination of such motions or matters requires an application of evidence principles[.]
In turn, KRE 407, states:
When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event 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.
We agree with the trial court that there is nothing in the plain language of KRE 407 that would prohibit its application in a criminal case. However, we disagree with the trial court’s application of the rule in this particular case. We leave open the possibility of KRE 407 being properly applied when a criminal defendant who is a party to the case has taken such subsequent measures. But given that the purpose of the rule is to further the public policy of “encouraging potential defendants to take safety precautions without fear they will be used against them,” “the rule’s exclusion of evidence of subsequent remedial measures is inapplicable to the actions of persons not party to a case.” Accordingly, we hold that while KRE 407 may apply in criminal cases, it may only apply in circumstances wherein a party defendant has undertaken the subsequent remedial measures. However, we still affirm the exclusion of the evidence based on the trial court’s additional finding that it was not relevant.
-CM