For other provisions of similar importance, see Uniform Rules 52 and 53; California Code of Evidence, § 1152, 1154; Kansas Code of Civil Procedure, §§60–452, 60–453; New Jersey Rules 52 and 53 on Evidence. Three states, which had published rules of evidence based on the rules proposed by the Supreme Court, opted for versions of section 408 identical to the Supreme Court`s draft with respect to the inadmissibility of conduct or statements in compromise negotiations. [Nev. Rev. Stats. §48.105; N. Mex. Stats. Anno. (1973 Supp.) §20–4–408; West statistics.
Anno. (1973 Supp.) §904.08]. The House bill was drafted in response to the executive`s objection that, under the rule proposed by the Supreme Court, a party could present a fact in compromise negotiations, thereby preventing an opposing party from presenting evidence of that fact at trial, even if that evidence came from independent sources. The Senate amendment expressly excludes that outcome. Parliament has changed the rule and will continue to admit evidence of facts disclosed during compromise negotiations. It has thus returned to the traditional rule. The House Committee`s report indicates that the Committee intends to maintain the existing law under which a party can protect itself by framing its testimony in a hypothetical form [see House Report No. 93-650 above].
However, the real effect of this amendment is to deprive the rule of much of its salutary effect. The Advisory Committee considered that the exception relating to confessions of fact impedes free communication between the parties and thus constitutes an unjustifiable restriction on efforts to negotiate agreements whose promotion is the subject of the rule. Moreover, by protecting hypothetical statements, he represented a preference for the refined and a trap for the unwary. The House bill provides that evidence of confessions or statements of responsibility during compromise negotiations is not admissible, but evidence of facts disclosed during compromise negotiations is not inadmissible because it was first disclosed during compromise negotiations. The Senate amendment provides that evidence of conduct or statements in compromise negotiations is not admissible. The Senate amendment also provides that the rule does not require the exclusion of evidence that might otherwise be discovered simply because it is presented in compromise negotiations. Under applicable federal law, evidence of conduct and statements of settlement negotiations in subsequent disputes between the parties are admissible. The second sentence of Article 408, as presented by the Supreme Court, proposed to reverse this doctrine in order to further promote alternative dispute resolution. Some government agencies felt that the court`s wording would hinder rather than support efforts to resolve disputes. On the one hand, it is not always easy to say when compromise negotiations begin and when informal agreements end. In addition, parties dealing with government agencies would be reluctant to provide factual information at preparatory meetings; They would wait until the “compromise negotiations” had begun, hoping to obtain immunity for themselves from the evidence presented. In the light of these considerations, the Committee has redrafted the article so that confessions of responsibility or statements during compromise negotiations remain inadmissible, but evidence of unqualified factual allegations is admissible.
However, the latter aspect of the rule is formulated in such a way as to preserve other possible objections to the introduction of such evidence. The Committee does not intend to amend the existing law that allows a party to protect itself against future use of its statements by formulating them in hypothetical conditional form. The wording of Rule 408 was amended as part of the general revision of the Rules of Evidence to make them easier to understand and to make the style and terminology consistent across the Rules. These changes are only stylistically planned. There is no intention to change the outcome of a decision on the admissibility of evidence. The amendment distinguishes between statements and conduct (e.g., a direct admission of guilt) made in the course of compromise negotiations on a civil suit brought by a government agency for an offer or acceptance of a compromise on such an offer. An offer or acceptance of a compromise for a civil action is excluded under the rule if it is offered against the defendant as an admission of guilt. In this case, the predicate of the evidence would be that the defendant acknowledged the validity and amount of the civil action by a compromise with the government agency and that this confession has sufficient probative value to be considered proof of guilt.