Advisory Committee’s Note to Alabama Rule of Evidence 407 Recognizes Limits to Subsequent Remedial Measure Rule

Federal Rule of Evidence 407 provides that

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.

Generally, federal courts have interpreted Rule 407 to not cover (1) remedial measures taken by nonparties; and (2) involuntary remedial measures. Both of these lines of precedent have been incorporated into the Advisory Committee’s Note to Alabama Rule of Evidence 407.

As the recent opinion of the Court of Criminal Appeals of Alabama in Hughes v. State, 2020 WL 597207 (Ala.Crim.App. 2020), notes, the Advisory Committee’s Note to Alabama Rule of Evidence 407 states:

The Committee recognizes that the overwhelming body of federal caselaw holds that Federal Rule 407 does not require exclusion of evidence of (1) subsequent remedial measures made by nonparties or (2) subsequent remedial measures that were involuntarily undertaken or performed, and that such caselaw constitutes persuasive authority for the interpretation of Alabama’s Rule 407. See Ala. R. Evid. 102  (AdvisoryCommittee’s Notes (‘These rules have been modeled … after the Federal Rules of Evidence … Cases interpreting the federal rules … are persuasive … authority before the Alabama courts.’); Ex parte Lawrence, 776 So. 2d 50, 53 (Ala. 2000)(construing Rule 404(b)) (‘The Advisory Committee Notes to the federal rules are persuasive authority in our interpretation of the Alabama rules.’).

-CM