§ 14.08 ADMISSIBILITY FOR OTHER PURPOSES

• Jurisdiction: United States

§ 14.08. ADMISSIBILITY FOR OTHER PURPOSES

Rule 408 applies only if evidence of compromise is offered to prove or disprove the validity or amount of a claim or to impeach by a prior inconsistent statement or a contradiction. If the evidence is offered for some other purpose, the rule does not apply. The list of other purposes in Rule 408(b) — proving bias, negating a contention of undue delay,³¹ or proving an effort to obstruct justice — is not exhaustive; such evidence may be offered for any other purpose.

Admissibility, however, is not automatic; the trial court must still apply Rules 401 to 403.³² If evidence of settlement is introduced for another purpose, a limiting instruction is required upon request of a party.³³

[A] Bias

If a plaintiff sues defendants A and B, a settlement between the plaintiff and defendant A is inadmissible at B's trial if offered to prove liability. The policy of encouraging settlements is applicable in such a case. If, however, A testifies as a witness for the plaintiff at B's trial, evidence of the settlement between the plaintiff and A may be introduced to show bias.³⁴ The settlement may be a trade-off for the witness's favorable testimony, a classic example of bias (interest) impeachment.³⁵ Prejudice is merely another name for bias.

As noted above, admissibility is not automatic; Rules 401 through 403 apply. Furthermore, an impeachment argument should not be permitted to circumvent the policies underlying the rule.³⁶ An experienced cross-examiner can often "create" the opportunity for impeachment.

[B] Obstruction of Justice

Evidence of a compromise, or an offer to compromise, is also admissible if proffered to prove obstruction of a criminal investigation or prosecution. An attorney unfamiliar with criminal litigation may fall into this trap. Sometimes the same conduct may result in parallel litigation, i.e., both criminal and civil suits — for example, a drunk-driving accident that has caused property damage. Although there is nothing improper in attempting to settle the civil suit, care must be exercised in this context. If the damage amounts to $5,000 and you offer $6,000, hoping that the criminal case "disappears" with the civil case, there may be a problem. "An effort to 'buy off' the prosecution or a prosecuting witness in a criminal case is not within the policy of the rule of exclusion."³⁷

Plea negotiations in criminal cases involve the prosecutor as the representative of the state; the civil plaintiff is not a...