Advisory Committee Historical Note
Effective July 1, 2016, the Rule was amended as part of the general restyling of the Evidence Rules.
Effective June 16, 2016, the “Comment” was retitled “Advisory Committee Note.”
Advisory Committee Note
The language of Rule 408 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. The Rule has been restructured, adding subdivisions and additional paragraphs. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
Rule 408 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc.
Reference to “liability” has been deleted, on the ground that the deletion makes the rule flow better and easier to read, and because “liability” is covered by the broader term “validity.” Courts have not made substantive decisions on the basis of any distinction between validity and liability. No change in current practice or in the coverage of the rule is intended.
Evidence of an offer to compromise a claim is not receivable in evidence as an admission of either the validity or invalidity of the claim. The rule is based on two reasons. First, the evidence is irrelevant, since the offer may be motivated by a desire for peace rather than by a recognition of liability. Secondly, public policy favors the out-of-court compromises and settlement of disputes. The same policy underlines M.R.C.P. 48 which provides that evidence of an unaccepted offer is not admissible except in a proceeding to determine costs.
Pre-rule practice in Mississippi was similar to the rule with one significant difference. Under Rule 408 statements of admission facts made in negotiations are excluded from evidence. In Mississippi, an admission made in a settlement negotiation has been admissible against the declarant. See McNeer & Dood v. Norfleet, 113 Miss. 611, 74 So. 577 (1917).
Rule 408 only excludes offers when the purpose is proving the validity or invalidity of the claim or amount. Therefore, an offer for another purpose may well be admissible at trial.
Also, it is important to note that offers which are made in settlement negotiations are not necessarily excluded if they are otherwise discoverable.
[“Advisory Committee Note” substituted for “Comment,” effective June 16, 2016; amended July 1, 2016, to note restyling.]
