§ 14.11 KEY POINTS

• Jurisdiction: United States

§ 14.11. KEY POINTS

Federal Rule 408(a) excludes evidence of compromises and offers to compromise when offered to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction. A different provision, Rule 410, governs the admissibility of offers to plead guilty or no contest in criminal cases. Note, however, Rule 408 may sometimes apply in criminal cases.

Rationale. Rule 408 promotes the public policy favoring the compromise and settlement of disputes. Offers to settle lawsuits would quickly disappear if the other party could reject the offer but use it as evidence. Also, such evidence is of questionable relevance in some cases.

Statements. Rule 408's exclusionary policy also extends to statements made during settlement negotiations. Rule 408(a) draws a distinction between civil disputes involving the government and civil disputes involving private parties. 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. In contrast, statements made in negotiations between private parties are inadmissible in criminal cases.

Dispute requirement. Rule 408 applies only if the claim or its amount is disputed. Because statements made prior to the...