Page 347 TITLE 28, APPENDIX—RULES OF EVIDENCE Rule 409 against the defendant as an admission of fault. In that statement or offer, this could itself reveal the fact that case, the predicate for the evidence would be that the the adversary entered into settlement negotiations. defendant, by compromising with the government The protections of Rule 408 cannot be waived unilater- agency, has admitted the validity and amount of the ally because the Rule, by definition, protects both par- civil claim, and that this admission has sufficient pro- ties from having the fact of negotiation disclosed to the bative value to be considered as evidence of guilt. But jury. Moreover, proof of statements and offers made in unlike a direct statement of fault, an offer or accept- settlement would often have to be made through the ance of a compromise is not very probative of the de- testimony of attorneys, leading to the risks and costs fendant’s guilt. Moreover, admitting such an offer or of disqualification. See generally Pierce v. F.R. Tripler & acceptance could deter a defendant from settling a civil Co., 955 F.2d 820, 828 (2d Cir. 1992) (settlement offers are regulatory action, for fear of evidentiary use in a sub- excluded under Rule 408 even if it is the offeror who sequent criminal action. See, e.g., Fishman, Jones on seeks to admit them; noting that the ‘‘widespread ad- Evidence, Civil and Criminal, § 22:16 at 199, n.83 (7th ed. missibility of the substance of settlement offers could 2000) (‘‘A target of a potential criminal investigation bring with it a rash of motions for disqualification of may be unwilling to settle civil claims against him if a party’s chosen counsel who would likely become a by doing so he increases the risk of prosecution and witness at trial’’). conviction.’’). The sentence of the Rule referring to evidence The amendment retains the language of the original ‘‘otherwise discoverable’’ has been deleted as super- rule that bars compromise evidence only when offered fluous. See, e.g., Advisory Committee Note to Maine as evidence of the ‘‘validity,’’ ‘‘invalidity,’’ or Rule of Evidence 408 (refusing to include the sentence ‘‘amount’’ of the disputed claim. The intent is to retain in the Maine version of Rule 408 and noting that the the extensive case law finding Rule 408 inapplicable sentence ‘‘seems to state what the law would be if it when compromise evidence is offered for a purpose were omitted’’); Advisory Committee Note to Wyoming other than to prove the validity, invalidity, or amount Rule of Evidence 408 (refusing to include the sentence of a disputed claim. See, e.g., Athey v. Farmers Ins. Ex- in Wyoming Rule 408 on the ground that it was ‘‘super- change, 234 F.3d 357 (8th Cir. 2000) (evidence of settle- fluous’’). The intent of the sentence was to prevent a ment offer by insurer was properly admitted to prove party from trying to immunize admissible information, insurer’s bad faith); Coakley & Williams v. Structural such as a pre-existing document, through the pretense Concrete Equip., 973 F.2d 349 (4th Cir. 1992) (evidence of of disclosing it during compromise negotiations. See settlement is not precluded by Rule 408 where offered Ramada Development Co. v. Rauch, 644 F.2d 1097 (5th Cir. to prove a party’s intent with respect to the scope of a 1981). But even without the sentence, the Rule cannot release); Cates v. Morgan Portable Bldg. Corp., 708 F.2d be read to protect pre-existing information simply be- 683 (7th Cir. 1985) (Rule 408 does not bar evidence of a cause it was presented to the adversary in compromise settlement when offered to prove a breach of the settle- negotiations. ment agreement, as the purpose of the evidence is to Changes Made After Publication and Comments. In re- prove the fact of settlement as opposed to the validity sponse to public comment, the proposed amendment or amount of the underlying claim); Uforma/Shelby Bus. was changed to provide that statements and conduct Forms, Inc. v. NLRB, 111 F.3d 1284 (6th Cir. 1997) (threats during settlement negotiations are to be admissible in made in settlement negotiations were admissible; Rule subsequent criminal litigation only when made during 408 is inapplicable when the claim is based upon a settlement discussions of a claim brought by a govern- wrong that is committed during the course of settle- ment regulatory agency. Stylistic changes were made ment negotiations). So for example, Rule 408 is inap- in accordance with suggestions from the Style Sub- plicable if offered to show that a party made fraudulent committee of the Standing Committee. The Committee statements in order to settle a litigation. Note was altered to accord with the change in the text, The amendment does not affect the case law provid- and also to clarify that fraudulent statements made ing that Rule 408 is inapplicable when evidence of the during settlement negotiations are not protected by compromise is offered to prove notice. See, e.g., United the Rule. States v. Austin, 54 F.3d 394 (7th Cir. 1995) (no error to admit evidence of the defendant’s settlement with the Rule 409. Payment of Medical and Similar Ex- FTC, because it was offered to prove that the defendant penses was on notice that subsequent similar conduct was wrongful); Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987) Evidence of furnishing or offering or promis- (in a civil rights action alleging that an officer used ex- ing to pay medical, hospital, or similar expenses cessive force, a prior settlement by the City of another occasioned by an injury is not admissible to brutality claim was properly admitted to prove that prove liability for the injury. the City was on notice of aggressive behavior by police officers). (Pub. L. 93–595, § 1, Jan. 2, 1975, 88 Stat. 1933.) The amendment prohibits the use of statements made NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES in settlement negotiations when offered to impeach by prior inconsistent statement or through contradiction. The considerations underlying this rule parallel those Such broad impeachment would tend to swallow the ex- underlying Rules 407 and 408, which deal respectively clusionary rule and would impair the public policy of with subsequent remedial measures and offers of com- promoting settlements. See McCormick on Evidence at promise. As stated in Annot., 20 A.L.R.2d 291, 293: 186 (5th ed. 1999) (‘‘Use of statements made in com- ‘‘[G]enerally, evidence of payment of medical, hos- promise negotiations to impeach the testimony of a pital, or similar expenses of an injured party by the op- party, which is not specifically treated in Rule 408, is posing party, is not admissible, the reason often given fraught with danger of misuse of the statements to being that such payment or offer is usually made from prove liability, threatens frank interchange of informa- humane impulses and not from an admission of liabil- tion during negotiations, and generally should not be ity, and that to hold otherwise would tend to discour- permitted.’’). See also EEOC v. Gear Petroleum, Inc., 948 age assistance to the injured person.’’ F.2d 1542 (10th Cir. 1991) (letter sent as part of settle- Contrary to Rule 408, dealing with offers of com- ment negotiation cannot be used to impeach defense promise, the present rule does not extend to conduct or witnesses by way of contradiction or prior inconsistent statements not a part of the act of furnishing or offer- statement; such broad impeachment would undermine ing or promising to pay. This difference in treatment the policy of encouraging uninhibited settlement nego- arises from fundamental differences in nature. Commu- tiations). nication is essential if compromises are to be effected, The amendment makes clear that Rule 408 excludes and consequently broad protection of statements is compromise evidence even when a party seeks to admit needed. This is not so in cases of payments or offers or its own settlement offer or statements made in settle- promises to pay medical expenses, where factual state- ment negotiations. If a party were to reveal its own ments may be expected to be incidental in nature. Rule 410 TITLE 28, APPENDIX—RULES OF EVIDENCE Page 348 For rules on the same subject, but phrased in terms Exclusion of offers to plead guilty or nolo has as its of ‘‘humanitarian motives,’’ see Uniform Rule 52; Cali- purpose the promotion of disposition of criminal cases fornia Evidence Code § 1152; Kansas Code of Civil Proce- by compromise. As pointed out in McCormick § 251, p. dure § 60–452; New Jersey Evidence Rule 52. 543 ‘‘Effective criminal law administration in many lo- Rule 410. Inadmissibility of Pleas, Plea Discus- calities would hardly be possible if a large proportion sions, and Related Statements of the charges were not disposed of by such com- promises.’’ Except as otherwise provided in this rule, evi- See also People v. Hamilton, 60 Cal.2d 105, 32 Cal.Rptr. dence of the following is not, in any civil or 4, 383 P.2d 412 (1963), discussing legislation designed to criminal proceeding, admissible against the de- achieve this result. As with compromise offers gener- fendant who made the plea or was a participant ally, Rule 408, free communication is needed, and secu- in the plea discussions: rity against having an offer of compromise or related (1) a plea of guilty which was later with- statement admitted in evidence effectively encourages drawn; it. Limiting the exclusionary rule to use against the ac- (2) a plea of nolo contendere; cused is consistent with the purpose of the rule, since (3) any statement made in the course of any the possibility of use for or against other persons will proceedings under Rule 11 of the Federal Rules not impair the effectiveness of withdrawing pleas or of Criminal Procedure or comparable state the freedom of discussion which the rule is designed to procedure regarding either of the foregoing foster.