TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 408, N.D.R.Ev., Compromise and Offers to Compromise
The U.S. Supreme Court has approved amendments to Fed.R.Ev. 408 and they will take effect December 1 unless Congress intervenes. Proposed amendments to Rule 408 have therefore been prepared for consideration by the Committee.
According to the federal explanatory materials, the amendments are intended to:
--Bar evidence from settlement negotiations in a civil case from being used in a subsequent criminal case unless the civil case was brought by a government agency.
--Prohibit statements made in the course of settlement negotiations from being used to impeach a witness through prior inconsistent statement or contradiction.
--Bar a party from using its own statements and offers made in settlement negotiations to prove the validity, invalidity or amount of a claim.
As the attached materials show, many comments were submitted criticizing the proposal to allow some use of settlement negotiation evidence in criminal cases. The original language of the proposal was changed in response to these comments. The advisory committee indicated that allowing settlement negotiation evidence from cases brought by the government to be used in criminal cases made sense because a party negotiating with a government agent would be on notice that what was said in negotiations might later be brought up in a criminal case.
There is only a limited amount of North Dakota case law involving Rule 408. The Supreme Court has turned to federal court interpretations of the federal rule for guidance in interpreting Rule 408. See Zimprich v. Harvestore Systems, Inc., 461 N.W.2d 425 (N.D. 1990).
Amendments are also proposed for the explanatory note. The proposed amendments explain the changes to the rule and also update the content of the explanatory note.
A rule draft containing the proposed amendments is attached.