In one of my ongoing family violence cases, my client told me that his spouse was insisting that he take an anger management course. He feels that he does not need the course, because he was acting completely in self-defense. He was concerned, though, that taking the course could be used against him in his case to show that he actually needs anger management and that he was therefore probably the aggressor.
I researched the issue, and to my surprise, there is not a completely clear answer in Texas. I could not find any published cases in Texas that directly address the question. However, I strongly believe that the likelihood that taking an anger management course after the incident in question could be used against a person accused of family violence is very low. This blog explains why.
There is a principle of evidence law called “subsequent remedial measures.” The idea is that, if someone takes corrective action after the incident in question, the law should not allow this to be used against them, because we want to encourage people to take corrective actions.
This principle usually comes into play in civil cases. For example, let’s say a company has a driver who is accused of driving unsafely and causing a bad accident. If the company is sued by an accident victim, the company might not want to fire the driver, even though the driver is unsafe, because firing him might make it look like the company is admitting that the driver is unsafe. The law wants the company to be able to fire the driver to protect the public from an unsafe driver. To do that, the law will not allow firing the driver to be used against the company in the lawsuit.[1]
The Federal Rules of Evidence, and the rules of evidence of most states, include this principle. In the Federal Rules of Evidence, this is Rule 407. Most state rules are based on the Federal Rules of Evidence, so it turns out that, in most state rules, the principle is also Rule 407. For the most part, with minor differences, the federal and state rules are the same.
Texas Rule of Evidence 407 states:
Rule 407. Subsequent Remedial Measures; Notification of Defect
(a) Subsequent Remedial Measures. 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.
[1] See Fed. R. Evid. 407, advisory committee’s note; Penley v. State, 2 S.W.3d 534, 540 (Tex. App.—Texarkana 1999, pet. ref’d).
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.[2]
Although Rule 407 clearly applies to civil cases, what about criminal cases? Surprisingly, courts around the country have reached different conclusions. Some courts have held that their jurisdiction’s version Rule 407 only applies to civil cases.[3] Others have held that the rule applies in both civil and criminal cases.[4]
In Texas, I found only one reported opinion that squarely considers whether Texas Rule of Evidence 407 applies in criminal cases. That case is Penley v. State, from the Texarkana court of appeals.[5] This opinion is not binding on Texas courts in other divisions. It is only persuasive authority.
In Penley, the defendant was accused of intoxication manslaughter—driving while intoxicated resulting in a death. The first trial resulted in a hung jury. In that trial, Penley’s expert witness testified that the blood testing procedures of the Plano Police Department were deficient because they did not require refrigeration of blood samples before testing. After this trial, and in response to the expert’s testimony, the Plano Police Department changed its policy and began requiring refrigeration of blood samples before testing. In Penley’s second trial, Penley wanted to tell the jury that the Plano Police Department had changed its policy, in order to show that the Plano Police Department apparently agreed that its testing policies were deficient. The trial court excluded this evidence as a subsequent remedial measure under Rule 407, and the Texarkana Court of Appeals upheld this ruling.
The Texarkana Court of Appeals noted that, before 1998, Texas had two sets of rules of evidence: the Texas Rules of Civil Evidence and the Texas Rules of Criminal Evidence. In 1998, these rules were unified into the Texas Rules of Evidence.[6] Before unification, both the civil rules and the criminal rules contained an identical version of Rule 407.[7] The fact that the same rule applied in criminal cases and civil cases before unification conclusively demonstrates that the rule should apply in both types of cases in Texas. The Texarkana Court of Appeals therefore had no difficulty applying Rule 407 in criminal cases.[8] In upholding the exclusion of the policy change, the court reasoned that the policy change occurred after the first trial, that it was designed to remedy the harm of deficient testing, and that admitting the policy change could have discouraged the Plano Police Department from adopting a better procedure.[9]
The Texas Court of Criminal Appeals—our state’s highest criminal court—has not ruled on whether Rule 407 applies in criminal cases. The Texarkana Court of Appeals’ reasoning in Penley is so persuasive, however, that I have no doubt that Rule 407 applies in criminal cases in Texas.
If Rule 407 applies in criminal cases, would it prevent the use of anger management courses after the incident in family violence trials. In general, I believe the answer is that it would.
An anger management course taken after the alleged family violence incident would be a “measure…that would have made an earlier injury or harm less likely to occur.”[10] According to Rule 407, it would therefore be inadmissible to prove “culpable conduct”[11]—that the defendant committed the crime of family violence. Moreover, the accused’s taking of an anger management course without fear that it would be used in trial promotes the policy reason for the rule—promoting safety. Therefore, the State should not be allowed to try to prove the defendant’s guilt by referring to an anger management course taken after the alleged family violence incident.
In addition to Rule 407, a defendant should also ask a court to exclude the anger management course under Rule 403, which provides that a court can exclude relevant evidence when its tendency to prejudice the jury against the defendant substantially outweighs the value of the evidence to prove the point.[12] Taking an anger management course does not prove that a person is physically violent. Anger management courses benefit people who have a hard time controlling their anger, even if the anger does not lead to physical violence. Additionally, in a case like my client’s, an anger management course may be something that the accused does not think is necessary, but the accused may agree to it because of pressure from others. For these reasons, a judge might exclude the anger management course under Rule 403 as well as under Rule 407.
One caution is necessary. Rule 407 has an exception for “impeachment.”[13] This means discrediting a witness’ testimony. In other words, if the defendant testifies, the State might be allowed to use the anger management course to discredit the testimony of the accused. Defense lawyers should therefore be careful not to “open the door” to this kind of impeachment by asking the defendant questions about the defendant’s ability to control anger.
A person who is accused of family violence should be able to get the help the person may need without fear of hurting their defense in a criminal case. Fortunately, Texas law should allow that.
Family violence is a serious criminal charge. A conviction can affect you for the rest of your life. If you or a loved one is charged with family violence in Texas, you should consult with John Helms an experienced Dallas family violence defense lawyer who knows how to win these cases at trial.
[1] See Fed. R. Evid. 407, advisory committee’s note; Penley v. State, 2 S.W.3d 534, 540 (Tex. App.—Texarkana 1999, pet. ref’d).
[2] Tex. R. Evid. 407(a).
[3] See, e.g., United States v. Wittig, 425 F.Supp.2d 1196, 1223 (D. Kan. 2006); State v. Conley, 2009 WL 301821 (Wis. App. 2009).
[4] See, e.g., Pozo-Illas v. Commonwealth, 2023 WL 2623213 (Ky. 2023).
[5] Penley v. State, 2 S.W.3d 534 (Tex. App.—Texarkana 1999, pet. ref’d).
[6] See id. at 540 n.7.
[7] See id. at 540.
[8] See id. at 540-41.
[9] See id.
[10] Tex. R. Evid. 407(a).
[11] Id.
[12] See Tex. R. Evid. 403.
[13] Tex. R. Evid. 407(a).