COMMENT

2. Negativing a contention of undue delay.

3. Proving an effort to obstruct a criminal prosecution.

This Rule, like Rule 407 (Subsequent Remedial Measures), is designed to encourage the compromise and settlement of claims. It bars admission of evidence relative to offers to compromise or settle a claim inasmuch as that evidence may be motivated by many reasons, including a desire for peace. This Rule, like Rule 410 and a similar rule under Rule 11(e)(6) of the Federal Rules of Criminal Procedure, allows the parties to an action to discuss the disposition of cases without fear that their offers of compromise will return to haunt them if the claims are not settled.

This Rule also applies where the validity of the claim or the amount of the claim is in dispute. It is inapplicable where the debtor party acknowledges the validity of the debt and the amount involved. Such statements made in connection with such debts are in the nature of admissions.

ILLUSTRATION

Assume EPA sues X for $1,000,000 in Civil penalties for pollution violations. X is of the view that he committed the violations in question and owes some money; however, he believes that a million dollars is excessive. Accordingly, X tells EPA that he is willing to pay $300,000 to get the agency off of his back. EPA refuses to accept the amount and the matter is litigated. The judge, hearing the case, muses aloud at the close of the evidence that he is prepared to find X liable and impose a Civil penalty of $200,000. EPA, in order to raise the final penalty figure, cannot advise the judge that X was prepared to pay $300,000 earlier. Nor may EPA during the trial mention that X was prepared to forfeit that amount.

On the other hand, assume X did not do any work on a contract EPA hired him to perform and must return the money ($1,000,000) the agency paid him. X repeatedly tells the agency that he will return the money but changes his mind when other creditors start hounding him. The Agency sues X for the money. During the pretrial stages of the case, X works out an agreement with EPA to pay the full amount in installments, but later changes his mind when creditors

again start to hound him. At the trial, EPA may introduce the agreement inasmuch as it was not a compromise offer on a disputed claim.

Where an offer of compromise is accepted and is incorporated into an agreement, if one of the parties breaches the agreement, the agreement may be offered into evidence. The policy reason for the rule (to encourage settlements) is inapplicable where the offer has been accepted and is merged into an agreement. In the lawsuit, the breach of the settlement agreement may form the basis of the cause of action or the party may sue on the original action.

Where the evidence is offered for a purpose other than proving liability or the invalidity of a claim, the Rule does not bar its admission. Additionally, statements made during the negotiations may not be used as admissions or declarations against interest. However, such statements may be used in perjury or false statement prosecutions.

RULE 409

PAYMENT OF MEDICAL AND SIMILAR EXPENSES

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

ELEMENTS

A.

Evidence of furnishing, offering or promising to pay medical, anticipated or similar expenses.

B.

Occasioned by injury.

C.

Not admissible to establish liability for the injury.

Note: May be admissible under guidelines of Rule 408.

COMMENT

The underlying reasons for this Rule are identical to those for Rules 407 and 408. An offer to pay medical expenses may be prompted by sympathy or to make amends rather than constituting a recognition of liability. The trier of fact should not be permitted to speculate as to the intent of the offeror at the time he tendered his assistance.

INADMISSIBILITY OF PLEAS, OFFERS OF PLEAS, AND RELATED STATEMENTS

Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty

or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel. As amended Pub. L. 94-149, § 1(9), Dec. 12, 1975, 89 Stat. 805.

ELEMENTS

A. Evidence of plea of guilty or nolo contendere later withdrawn or an offer to plead guilty to a crime charged or statements made in connection therewith, are not admissible in any proceeding against the person who made plea or offer.

B. Rule modified by F. R. Crim. P. 11(e)(6), providing for admissibility

if:

1. Statement made in connection with and relevant to plea, and

2. In a criminal proceeding for perjury or false statement, and

This rule merely codifies the traditional rule against allowing this type of evidence to be admitted. Whether a plea of guilty is withdrawn pursuant to a statutory right or by permission of the Court, the accused stands trial upon a plea of not guilty and is entitled to all of the safeguards and presumptions of innocence which the law extends to one on trial where life or

liberty is at stake. On the other hand, the rule is limited where the accused seeks to use its provisions in order to commit perjury or make false statements. This follows a recent trend to limit the exclusionary rule where the accused seeks to use its protection to commit perjury. See Harris v. New York, 401 U.S. 222 (1971); Oregon v. Hass, 402 U.S. 714 (1975); Walder v. U.S. 347 U.S. 62 (1954); U.S. v. Havens, 27 CRL. 3136 (1980).

U.S.

Without plea bargaining, the courts would become backlogged with cases. Consequently, pleas and offers to plea are to be encouraged. This rule promotes the disposition of criminal cases by compromise.

Defendants often seek to plead nolo contendere inasmuch as it is not

an admission of guilt and is not considered an admission in subsequent civil loss.