TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 4, 2012
RE: Rule 408, N.D.R.Ev., Compromise Offers and Negotiations
Form and style amendments to Rule 408 consistent with the 2011 federal amendments are proposed. The amendments are not intended to change any result in any ruling on evidence admissibility.
There is language in the federal rule allowing compromise negotiation statements about a "claim" to be used in criminal cases under certain circumstances. This language is highlighted and made part of the proposal for discussion purposes. The Committee decided not to add this language to the rule in 2006 when it considered prior federal amendments.
Here is an excerpt from the Committee's 2006 discussion:
A member said that there was no reason to accept the proposed amendment relating to use of settlement evidence in criminal cases. The member said that merely carrying on a negotiation with a government representative should not open the door to using evidence from the negotiation in a criminal case.
Mr. Kapsner MOVED to amend page 189, lines 12-16, by returning the material to its original form. Judge Simonson seconded.
A member said that allowing the use of negotiation evidence in a criminal case would have a chilling effect on settlement negotiations with government representatives. The member said there was no reason to make an exception to the rule against admissibility of settlement evidence in cases where the government was a party.
A member asked whether there was a reason for the exception in the federal rule. Staff explained that the federal amendment was the result of a compromise--the original federal proposal would have allowed admission of settlement negotiation evidence from any civil case in any criminal case.
A member pointed out that N.D.R.Ev.410 and N.D.R.Crim.P. 11 contain standards for the admission of evidence from plea discussions. The member said the proposed amendment reflects the actual practice of federal agencies, such as the Internal Revenue Service, that already warn people engaging in negotiations that what they say can be used in a criminal case.
A member said the motion to restore the former language was a good idea, because it also restored language on otherwise discoverable evidence. The member said this language prevents parties from presenting evidence at a mediation in order to insulate the evidence from being used at trial.
Motion to restore the previous language CARRIED unanimously.
Unique North Dakota language stating that "[t]he court need not exclude evidence otherwise discoverable merely because it is presented in the course of compromise negotiations" has been moved to the end of subdivision (b) in the proposal rather than being left in a freestanding unlabeled paragraph. The explanatory note discusses what this language is supposed to mean and, as shown above, the Committee considered it to be important to retain this language when it last discussed the rule.