§ 14.04 STATEMENTS

• Jurisdiction: United States

§ 14.04. STATEMENTS

Rule 408(a) excludes evidence of conduct or statements made during compromise negotiations. The rule changes the common law, under which "independent statements of fact" made during settlement negotiations were admissible. The drafters rejected the common law position because admitting statements made during negotiations has the effect of either inhibiting the negotiations or trapping the unwary negotiator (e.g., forcing negotiators to preface offers with words such as "hypothetically," "without prejudice," or "assuming").¹³ In short, settlement negotiations involve communications, and the common law rule needlessly dampened or interrupted communications.¹⁴ In addition, such a rule raised controversies as to whether the proffered evidence constituted an independent statement of fact, or was rather part of the offer.

Criminal cases. Statements or conduct indicating fault made during settlement negotiations regarding a civil dispute with a government regulatory, investigative, or enforcement agency may be admissible in subsequent criminal cases. Nevertheless, Rule 403 applies in this context.¹⁵ Moreover, an "individual can seek to protect against subsequent disclosure through negotiation and agreement with the civil regulator or an attorney for the government."¹⁶ In contrast to statements, an offer or acceptance of a settlement with a government agency remains inadmissible.¹⁷

Rule 408(a) draws a "distinction between civil disputes involving the government and civil disputes involving private parties."¹⁸ Statements made in negotiations between private parties are inadmissible in criminal cases. According to the drafters: "When private parties enter into compromise negotiations they cannot protect against the subsequent use of statements in criminal cases by way of private ordering. The inability to guarantee protection against subsequent use could lead to parties refusing to admit fault, even if by doing so they could favorably settle the private matter. Such a chill on settlement negotiations would be contrary to the policy of Rule 408."¹⁹ Some states reject this position: "When weighed directly against the public interest in the settlement of civil suits, the public interest in the disclosure and prosecution of crimes is certainly greater. Encouraging settlement of a civil matter surely 'does not justify excluding probative and otherwise admissible evidence in criminal prosecutions.' "²⁰ One such case involved a murder prosecution.²¹

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