Evidence of remorse has no place in a personal injury trial. The only issues before the jury are 1) whether the defendant was negligent or otherwise at fault, 2) whether said liability caused the plaintiff injuries or damages, and 3) a determination of the plaintiff’s related injuries and value of their damages.
Thus, I always file a motion in limine, preventing any evidence of remorse. My standard motion in limine on this topic follows:
The Court should exclude all reference, mention, argument, or evidence of Defendant’s remorse, or that he/she felt about Plaintiff’s injuries. Oregon has consistently rejected the admission of a defendant’s post-injury behavior or state of mind. In Byers v. Santiam Ford, Inc., 281 Or 411, 415 (1978), the court held that subsequent acts of contrition and a conciliatory attitude were not relevant and not admissible regarding punitive damages. In Mason v. Householder, 58 Or App 192, 195 (1982), the court held that admission of testimony that defendant was “rehabilitated” after plaintiff’s injury was reversible error, and that matters occurring after the happening of the bad act, and unrelated to the defendant’s state of mind at the time of the events, are inadmissible on the issue of punitive damages.
Thus, the court should exclude any evidence of Defendant’s remorse, or similar subsequent state of mind, on the ground that it is not relevant to Defendant’s state of mind at the time of the collision. OEC 401. As the rule in Mason states, such evidence is not admissible as to punitive damages (where specific deterrence is a major component of the award). Thus, it is certainly not relevant to compensation for ordinary negligence, which merely compensates the plaintiff victim, and is not designed to specifically deter the defendant from like behavior in the future. Likewise, such evidence should be excluded as unduly prejudicial and misleading, as it is likely to elicit feelings of sympathy for the defendant from the jury. OEC 401, 402, 403; UCJI 5.03 (“Do not allow bias, sympathy, or prejudice any place in your deliberations; all parties are equal before the law.”).
As you can see, only the Defendant’s state of mind at the time of the accident at issue is relevant to the jury – and for good reason. As to the question of liability, the jury must judge the defendant’s actions as compared to a reasonably prudent person under the same or similar circumstances. It is only on that limited basis that a defendant’s state of mind is admissible. Aside from that basis, it is wholly irrelevant to the case. Thus, I strongly encourage all personal injury attorneys to file the same, or similar, motion in limine. Keep the juror’s focus on pertinent issues – liability, causation and damages. Anything else is distracting and, ultimately, detrimental to your case.