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Federal Rules of Evidence – Rule 407 

(through July 14, 2022)

Crushed Rule

Subsequent remedial measures cannot be admitted to prove wrongdoing.

Actual Rule

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.

Selected Committee Notes 

The rule incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault. The rule rests on two grounds. (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence. Or, as Baron Bramwell put it, the rule rejects the notion that “because the world gets wiser as it gets older, therefore it was foolish before.” Hart v. Lancashire & Yorkshire Ry. Co., 21 L.T.R. N.S. 261, 263 (1869). Under a liberal theory of relevancy this ground alone would not support exclusion as the inference is still a possible one. (2) The other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety. The courts have applied this principle to exclude evidence of subsequent repairs, installation of safety devices, changes in company rules, and discharge of employees, and the language of the present rules is broad enough to encompass all of them. See Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L.Rev. 574, 590 (1956).

The second sentence of the rule directs attention to the limitations of the rule. Exclusion is called for only when the evidence of subsequent remedial measures is offered as proof of negligence or culpable conduct. In effect it rejects the suggested inference that fault is admitted. Other purposes are, however, allowable, including ownership or control, existence of duty, and feasibility of precautionary measures, if controverted, and impeachment. 2 Wigmore §283; Annot., 64 A.L.R.2d 1296. Two recent federal cases are illustrative. Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961), an action against an airplane manufacturer for using an allegedly defectively designed alternator shaft which caused a plane crash, upheld the admission of evidence of subsequent design modification for the purpose of showing that design changes and safeguards were feasible. And Powers v. J. B. Michael & Co., 329 F.2d 674 (6th Cir. 1964), an action against a road contractor for negligent failure to put out warning signs, sustained the admission of evidence that defendant subsequently put out signs to show that the portion of the road in question was under defendant’s control. The requirement that the other purpose be controverted calls for automatic exclusion unless a genuine issue be present and allows the opposing party to lay the groundwork for exclusion by making an admission. Otherwise the factors of undue prejudice, confusion of issues, misleading the jury, and waste of time remain for consideration under Rule 403.

For comparable rules, see Uniform Rule 51; California Evidence Code §1151; Kansas Code of Civil Procedure §60–451; New Jersey Evidence Rule 51.

– Table of Contents –

Key Rules (MBE/MEE)

• FRE 103 – Evidence Rulings
• FRE 104 – Preliminary Questions
• FRE 105 – Limiting How Evidence may be Used
• FRE 106 – Completeness Rule
• FRE 201 – Judicial Notice
• FRE 301 – Presumptions
• FRE 401 – Relevance
• FRE 402 – Irrelevant = Inadmissible
• FRE 403 – Excluding the Prejudicial, Confusing, etc.
• FRE 404 – Character Evidence
• FRE 405 – Proving Character
• FRE 406 – Habit, Routine
• FRE 407 – Subsequent Remedial Measures
• FRE 408 – Compromise Negotiations
• FRE 409 – Offers to Pay Expenses
• FRE 410 – Pleas, Related Statements
• FRE 411 – Liability Insurance
• FRE 412 – Victim’s Sexual Predisposition
• FRE 413, 414, 415 – Other Sex-Related Rules
• FRE 501 – Privilege in General
• FRE 502 – Attorney-Client Privilege, Work-Product Doctrine
• FRE 601 – Witness Competency
• FRE 602 – Personal Knowledge
• FRE 605 – Judge as Witness
• FRE 606 – Juror as Witness
• FRE 607 – Impeachment
• FRE 608 – Honest, Dishonest Character
• FRE 609 – Evidence of Criminal Conviction
• FRE 610 – Religious Beliefs
• FRE 611 – Mode, Order of Evidence
• FRE 612 – Recollection Refreshed
• FRE 613 – Prior Statements
• FRE 614 – Court Witness Examination
• FRE 615 – Excluding Witnesses
• FRE 701 – Non-Expert Opinion
• FRE 702 – Expert Opinion
• FRE 703 – Bases of Expert Opinion
• FRE 704 – Ultimate Issue
• FRE 705 – Disclosing Underlying Data
• FRE 801 – Hearsay Defined
• FRE 802 – Rule Against Hearsay
• FRE 803 – Strong Hearsay Exceptions
• FRE 804 – Weak Hearsay Exceptions
• FRE 805 – Double Hearsay
• FRE 806 – Impeaching Hearsay Declarants
• FRE 807 – Residual Hearsay Exception
• FRE 901 – Authentication, Identification
• FRE 902 – Self-Authenticating Evidence
• FRE 1001 – Original Defined
• FRE 1002 – Original Sometimes Required
• FRE 1003 – When Copies Generally Admissible
• FRE 1004 – Other Times Admissible
• FRE 1005 – Public Record Copies Often Admissible
• FRE 1006 – Summaries
• FRE 1007 – Acknowledged Content
• FRE 1008 – Functions of Court, Jury
• FRE 1101 – Rules’ Applicability