SUPREME COURT OF ARIZONA
En Banc
MICHAEL HERNANDEZ and IDA ) Arizona Supreme Court
HERNANDEZ, husband and wife, ) No. CV-01-0437-PR
)
Plaintiffs-Appellants, ) Court of Appeals
) Division One
v. ) No. 1 CA-CV 01-0008
)
STATE OF ARIZONA, ARIZONA STATE ) Maricopa County
PARK SERVICE, ) Superior Court
) No. CV 98-20736
Defendants-Appellees. )
) O P I N I O N
____________________________________)
_________________________________________________________________
Appeal from the Superior Court of Maricopa County
Honorable Edward O. Burke, Judge
AFFIRMED
_________________________________________________________________
Opinion of the Court of Appeals, Division One
201 Ariz. 336, 35 P.3d 97 (2001)
VACATED
_________________________________________________________________
Janet Napolitano, Attorney General Phoenix
By Daniel P. Schaack, Assistant Attorney General
Attorney for the State of Arizona
Goldberg & Osborne Tucson
By Joel T. Ireland
Attorney for Michael and Ida Hernandez
_________________________________________________________________
M c G R E G O R, Vice Chief Justice
¶1 We granted review to address whether Rule 408, Arizona
Rules of Evidence (Ariz. R. Evid.), prohibits admission of evidence
contained in a notice of claim filed pursuant to Arizona Revised
Statutes (A.R.S.) section 12-821.01 (Supp. 2001) when the evidence
is introduced to impeach a party’s credibility. We conclude that,
assuming Rule 408 applies, the rule would not preclude the use of
impeachment materials contained in a notice of claim.
I.
¶2 Hernandez and his family arrived at the Patagonia Lake
State Park at dusk on Friday, August 29, 1997. Hernandez and his
son attempted to buy bait at the Patagonia Lake Camp store. The
store employee informed them that only the marina store sold bait.
¶3 The camp store was located on a hill above the marina
store. Rather than drive to the marina store, Hernandez and his
son tried to reach the store by crossing a parking lot area
adjacent to the camp store, stepping over a cable fence supported
by posts three feet high, and walking down a very steep hill
without any path or trail. Unbeknownst to Hernandez, the hill
ended at a retaining wall with a fourteen-foot drop-off to the road
below. In the approaching darkness, Hernandez stepped off the
retaining wall and fell to the road below. The fall knocked out
several of Hernandez’s front teeth and fractured his left wrist.
2
¶4 Pursuant to A.R.S. section 12-821.01,1 Hernandez filed a
notice of claim with the State on September 15, 1997. The notice
described the facts surrounding Hernandez’s fall as well as the
amount Hernandez claimed for his injuries.
¶5 After filing the notice of claim, Hernandez brought a
civil action against the State. In their joint pre-trial
statement, Hernandez and the State stipulated to the facts
underlying Hernandez’s claim. At trial, the State introduced
portions of the notice of claim to impeach Hernandez’s credibility
because the facts in the notice differed from Hernandez’s
deposition and trial testimony.2 Hernandez objected, arguing that
1
The statute requires that:
Persons who have claims against a public
entity . . . shall file claims with the person
or persons authorized to accept service for
the public entity . . . . The claim shall
contain facts sufficient to permit the public
entity . . . to understand the basis upon
which liability is claimed. The claim shall
also contain a specific amount for which the
claim can be settled and the facts supporting
that amount. Any claim which is not filed
within one hundred eighty days after the cause
of action accrues is barred and no action may
be maintained thereon.
A.R.S. § 12-821.01.A.
2
The State stipulated to redaction of Hernandez’s
statement defining the specific amount needed to settle the claim.
3
Rule 4083 barred its use. The trial court overruled Hernandez’s
objection and admitted the redacted notice of claim for impeachment
purposes. At the end of a five-day trial, the jury returned a
verdict in favor of the State.
¶6 The court of appeals upheld the trial court’s evidentiary
ruling. In its majority opinion, the court concluded that no
disputed claim exists when a party files a notice of claim, and a
notice of claim therefore cannot constitute an offer to compromise
excluded by Rule 408. Hernandez v. State, 201 Ariz. 336, 339-40 ¶¶
10-16, 35 P.3d 97, 100-01 (App. 2001). Dissenting, Judge Voss
urged that Rule 408 always requires exclusion of a notice of claim.
Id. at 342 ¶¶ 27-28, 35 P.3d at 103 (Voss, J., dissenting).
¶7 We accepted review and exercise jurisdiction pursuant to
3
Rule 408 provides:
Evidence of (1) furnishing or offering or promising to
furnish, or (2) accepting or offering or promising to
accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as to
either validity or amount, is not admissible to prove
liability for or invalidity of the claim or its amount.
Evidence of conduct or statements made in compromise
negotiations is likewise not admissible. This rule does
not require the exclusion of any evidence otherwise
discoverable merely because it is presented in the course
of compromise negotiations. This rule also does not
require exclusion when the evidence is offered for
another purpose, such as proving bias or prejudice of a
witness, negativing a contention of undue delay, or
proving an effort to obstruct a criminal investigation or
prosecution.
Ariz. R. Evid. 408.
4
Article VI, Section 5.3 of the Arizona Constitution and Rule 23 of
the Arizona Rules of Civil Appellate Procedure.
II.
A.
¶8 We begin by assuming, for purposes of this opinion, that
a notice of claim constitutes an offer of compromise under Rule
408. The plain language of Rule 408 does not exclude evidence
offered for the purpose of impeaching a party’s credibility. The
rule states, in pertinent part, that offers to compromise are “not
admissible to prove liability for or invalidity of the claim or its
amount.” Ariz. R. Evid. 408. Thus, although evidence originating
from compromise negotiations may not be admitted to prove liability
for or invalidity of a claim, the rule does not prevent the use of
such evidence in all instances.
¶9 In fact, Rule 408 expressly “does not require exclusion
when the evidence is offered for another purpose, such as proving
bias or prejudice of a witness.” Id. (emphasis added). The “such
as” language indicates that a party may introduce evidence
presented in offers to compromise for purposes other than proving
bias or prejudice, so long as the evidence is not used to prove
liability for or invalidity of a claim. Evidence admitted to
impeach party credibility, like evidence admitted to prove bias or
prejudice, does not prove liability for or invalidity of a claim.
Thus, the plain language of Rule 408 does not prohibit admission of
5
evidence disclosed in compromise negotiations for impeachment
purposes.
¶10 Other courts have interpreted the plain language of Rule
408 to permit the admission of impeachment evidence. In
interpreting Arizona’s evidentiary rules, we look to federal law
when our rule is identical to the corresponding federal rule, as is
true for Rule 408.4 State v. Green, 200 Ariz. 496, 498 ¶ 10, 29
P.3d 271, 273 (2001) (“When interpreting an evidentiary rule that
predominantly echoes its federal counterpart, we often look to the
latter for guidance.”).
¶11 Most federal circuit courts agree that Rule 408 does not
bar evidence from compromise negotiations if the evidence will be
used for impeachment purposes. For instance, the Ninth Circuit
Court of Appeals upheld the admission of an indemnity agreement
made during compromise negotiations for purposes of attacking the
credibility of witnesses, notwithstanding Rule 408, because that
purpose is “distinct from proving liability.” Brocklesby v. United
States, 767 F.2d 1288, 1292-93 (9th Cir. 1985). Similarly,
recognizing that Rule 408 prohibits an offer of compromise to prove
liability for or invalidity of a claim, the Eighth Circuit Court of
Appeals held that using an offer to compromise to rebut witness
testimony is “permissible under [Rule 408]” because “[t]he rule .
. . ‘does not require exclusion when the evidence is offered for
4
See Fed. R. Evid. 408.
6
another purpose.’” Cochenour v. Cameron Sav. & Loan, F.A., 160
F.3d 1187, 1190 (8th Cir. 1998)(quoting Fed. R. Evid. 408). See
also Wyatt v. Sec. Inn Food & Beverage Inc., 819 F.2d 69, 71 (4th
Cir. 1987) (The court held that Rule 408 “need not prevent a
litigant from offering evidence [from compromise negotiations] when
he does not seek to show the validity or invalidity of the
compromised claim.” The court, however, excluded the offered
evidence because the court did “not see . . . how [the] evidence
was relevant.”); Breuer Elec. Mfg. Co. v. Toronado Sys. of Am.,
Inc., 687 F.2d 182, 185 (7th Cir. 1982) (“In this case, the
‘settlement’ evidence was properly presented below to rebut
defendants’ assertion that they had not been aware of the issues
until the suit was filed.”). But cf. Williams v. Chevron U.S.A.,
Inc., 875 F.2d 501, 504 (5th Cir. 1989) (upholding the trial court’s
exclusion of settlement negotiations introduced for impeachment
purposes because “it [was] undoubtedly possible that the jury would
have confused [the impeachment] purpose for that precluded by Rule
408") cited with approval in EEOC v. Gear Petroleum, Inc., 948 F.2d
1542, 15 46 (10th Cir. 1991).
¶12 State courts, including the Arizona Court of Appeals,
also express general agreement that Rule 408 does not preclude the
use of impeachment evidence derived from compromise negotiations.
Considering the admission of a settlement letter for impeachment
purposes, the Arkansas Supreme Court held that Rule 408 did not
7
exclude a letter written in an attempt to settle a lawsuit because
“Rule 408 is not a blanket prohibition against the admission of all
evidence concerning offers to compromise. Instead, the rule only
prohibits the introduction of such evidence when the evidence is
offered to prove ‘liability for, invalidity of, or amount of the
claim or any other claim.’” Ozark Auto Transp., Inc. v. Starkey,
937 S.W.2d 175, 178 (Ark. 1997)(citation omitted)(quoting Ark. R.
Evid. 408). Similarly, the Idaho Supreme Court upheld “the use of
statements contained in settlement negotiations for the purpose of
impeaching witnesses who give contrary testimony” at trial.
Davidson v. Beco Corp., 753 P.2d 1253, 1256 (Idaho 1987). See also
DeForest v. DeForest, 143 Ariz. 627, 633, 694 P.2d 1241, 1247 (App.
1985) (holding that a husband’s signature agreeing to a proposed
divorce decree “was properly admitted for the limited purpose of
showing his knowledge of the proposed . . . spousal maintenance
award” when the husband testified at trial that he had never been
aware of the award); El Paso Elec. Co. v. Real Estate Mart, Inc.,
651 P.2d 105, 109 (N.M. Ct. App. 1982) (holding that evidence from
compromise negotiations “used to impeach, not to establish the
amount of the claim . . . comes within ‘another purpose’ [under
Rule 408], and is admissible”).
B.
¶13 The public policy underlying both the Arizona and the
federal rules of evidence favors allowing courts to admit evidence
8
presented during compromise negotiations for impeachment. The
purpose of the rules of evidence is to promote the “growth and
development of the law of evidence to the end that the truth may be
ascertained and proceedings justly determined.” Fed. R. Evid. 102
(emphasis added); Ariz. R. Evid. 102 (emphasis added). Moreover,
“[t]he purpose of Rule 408 is to foster ‘complete candor’ between
parties, not to protect false representations.” 23 Charles Alan
Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure:
Evidence § 5314, at 286 (1980).
¶14 Excluding evidence offered solely to impeach a party’s
credibility does not encourage complete candor. To the contrary,
that approach fails to hold parties accountable for setting forth
one version of the facts to obtain a settlement and describing
another version at trial. Claimants should present their claims
truthfully. Lawyers should not lie on behalf of clients in
presenting a claim. Allowing the use of evidence from compromise
negotiations for impeachment facilitates Rule 408's goal of
encouraging truthfulness by putting parties on notice that they
should not falsely represent claims, either during compromise
negotiations or at trial.
¶15 Of course, the admission of impeachment evidence taken
from a notice of claim remains subject to Rules 401, 402 and 403,
Ariz. R. Evid. Thus, impeachment evidence must be relevant under
Rules 401 and 402, and unfair prejudice must not substantially
9
outweigh its probative value. See Graber v. City of Ankeny, 616
N.W.2d 633, 640-41 (Iowa 2000) (holding evidence disclosed during
settlement not admissible because the evidence was not relevant to
show bias); Simmons v. Small, 986 S.W.2d 452, 455 (Ky. Ct. App.
1998) (refusing to allow settlement evidence for purposes of
impeachment because “[t]here is no question that the evidence . .
. was prejudicial”); Stam v. Mack, 984 S.W.2d 747, 752 (Tex. App.
1999) (precluding evidence of settlement agreement because the
evidence did not show bias or shifting interest); Northington v.
Sivo, 8 P.3d 1067, 1069 (Wash. Ct. App. 2000) (excluding evidence
of a settlement to prove bias because the evidence “was irrelevant
and unfairly prejudicial”).5
¶16 Because the rules of evidence seek to promote
5
The dissent expresses concern that juries will use
impeachment evidence to determine the validity of a claim. The
same concern exists, of course, for all evidence admitted for a
limited purpose, and the Rules of Evidence address that concern.
Just as Rules 401, 402 and 403 preclude the admission of irrelevant
and highly prejudicial impeachment evidence, Rule 105 may be
invoked to limit a jury’s consideration of impeachment evidence.
Ariz. R. Evid. 105 (“When evidence which is admissible . . . for
one purpose but not admissible . . . for another purpose is
admitted, the court, upon request, shall restrict the evidence to
its proper scope and instruct the jury accordingly.”). See also
Readenour v. Marion Power Shovel, 149 Ariz. 442, 450, 719 P.2d
1058, 1066 (1986) (“Rule 105 is mandatory, not discretionary; ‘once
evidence admissible for one purpose but inadmissible for another is
admitted, the trial court cannot refuse a requested limiting
instruction.’”)(quoting Chemetron Corp. v. Business Funds, Inc.,
682 F.2d 1149, 1185 (5th Cir. 1982)); Joseph M. Livermore et al.,
1 Arizona Practice Law of Evidence § 105.1, at 28 (4th ed. 2000)
(“[N]otwithstanding a Rule 105 limiting instruction, the court
would have the discretion to exclude the evidence from the trial
altogether under Rule 403.").
10
truthfulness, and Rule 408 encourages candid compromise
negotiations, public policy dictates that evidence obtained in the
course of compromise negotiations should be available for
impeachment purposes.
III.
¶17 The facts underlying Hernandez’s fall as set forth in the
notice of claim differed from the facts to which Hernandez
testified prior to and during trial. Because Hernandez presented
inconsistent versions of the facts surrounding his alleged
injuries, the State sought to admit factual portions of the notice
of claim to impeach Hernandez’s credibility. Significantly, the
State did not introduce the notice to prove that it was not liable
for Hernandez’s fall or to disprove the validity of Hernandez’s
claim or its amount. Thus, even if we regard the notice of claim
as an offer to compromise under Rule 408, the trial court properly
admitted portions of the notice of claim to impeach Hernandez’s
credibility.
IV.
¶18 For the foregoing reasons, we vacate the opinion of the
Court of Appeals and affirm the judgment of the Superior Court.
____________________________________
Ruth V. McGregor, Vice Chief Justice
11
CONCURRING:
__________________________________
Charles E. Jones, Chief Justice
__________________________________
Rebecca White Berch, Justice
Joseph W. Howard, Judge, dissenting:
¶19 “‘[C]ourts have not formulated a consistent, reliable
body of doctrine to determine the extent to which [R]ule 408 bars
evidence of . . . statements made during [compromise] negotiations’
when offered [to impeach a party].” Fred S. Hjelmeset, Impeachment
of Party by Prior Inconsistent Statement in Compromise
Negotiations: Admissibility Under Federal Rule of Evidence 408, 43
Clev. St. L. Rev. 75, 108 (1995) (brackets added) (footnote
omitted) (quoting Wayne D. Brazil, Protecting the Confidentiality
of Settlement Negotiations, 39 Hastings L. J. 955, 974 (1988)).
Not surprisingly then, differences of opinion arise as to the
proper impeachment use of statements made in compromise
negotiations. I conclude that a notice of claim filed pursuant to
A.R.S. § 12-821.01 is a statement made in compromise negotiations
triggering the exclusionary principles of Rule 408, Ariz. R. Evid.,
17A A.R.S. Further, I conclude that impeachment of a plaintiff or
defendant with prior inconsistent statements made in compromise
negotiations concerning the facts of an accident is not a proper
exception to Rule 408. Such use of those statements does little to
12
foster the truth-seeking process and does far too much to frustrate
the policy of encouraging prelitigation settlements. Accordingly,
I respectfully dissent.
¶20 The majority chose not to address the issue of whether
Rule 408 applies to a notice of claim filed under § 12-821.01
because the majority concludes that Rule 408 does not bar the
admission of the prior inconsistent statements in any event.
Because I conclude that Rule 408 precludes the use of such
statements, I must first analyze whether Rule 408 in fact applies.
The state argues, and a majority of the Court of Appeals concluded,
that a dispute triggering Rule 408 does not exist when a person
files a notice of claim against a public entity or employee because
the entity or employee has not yet taken a contrary position.
Hernandez v. State, 201 Ariz. 336, ¶12, 35 P.3d 97, ¶12 (App.
2001). That construction of Rule 408 is too narrow and overly
restricts the policy underlying the rule.
¶21 Section 12-821.01 requires any person who has a claim
against a public entity or employee to file a notice of claim
within 180 days after the claim accrues. That notice of claim must
include “facts sufficient to permit the public entity or public
employee to understand the basis upon which liability is claimed.”
§ 12-821.01(A). It must also contain “a specific amount for which
the claim can be settled and the facts supporting that amount.”
Id. The purpose of the notice of claim statute “is to allow the
13
public employee and his employer to investigate and assess their
liability, to permit the possibility of settlement prior to
litigation and to assist the public entity in financial planning
and budgeting.” Crum v. Superior Court, 186 Ariz. 351, 352, 922
P.2d 316, 317 (App. 1996) (emphasis added). Consequently, the
notice constitutes a statutorily mandated commencement of
compromise negotiations.
¶22 Under the first sentence of Rule 408, evidence of
furnishing or offering to furnish, accepting or offering to accept
a compromise of a disputed claim “is not admissible to prove
liability for or invalidity of the claim or its amount.” The
Advisory Committee Notes to Rule 408, Fed. R. Evid.,6 state that
the rule is not invoked by instances such as “induc[ing] a creditor
to settle an admittedly due amount for a lesser sum,” but rather
where “the claim [is] disputed as to either validity or amount.”
See also Affiliated Mfrs., Inc. v. Aluminum Co. of America, 56 F.3d
521, 528 (3d Cir. 1995) (dispute requirement covers “both
litigation and less formal stages of a dispute,” including “an
apparent difference of opinion between the parties”); Dallis v.
Aetna Life Ins. Co., 768 F.2d 1303, 1307 (11th Cir. 1985);
Schlossman & Gunkelman, Inc. v. Tallman, 593 N.W.2d 374, 378 (N.D.
6
Because Rule 408, Fed. R. Evid., is the source of Rule
408, Ariz. R. Evid., 17A A.R.S., see Historical Notes to Ariz. R.
Evid. 408, and the two rules contain identical language, federal
authority is instructive. See State v. Green, 200 Ariz. 496, ¶10,
29 P.3d 271, ¶10 (2001).
14
1999) (for purposes of evidence rule virtually identical to Rule
408, Ariz. R. Evid., “a claim is disputed if there is a difference
in interests or views which the parties are attempting to resolve
through compromise negotiations”).
¶23 The second sentence of Rule 408 expands the exclusion
further, stating: “Evidence of conduct or statements made in
compromise negotiations is likewise not admissible.” The Advisory
Committee Notes to the federal rule explain the purpose of the
second sentence: “Another effect [of the prior rule] is the
generation of controversy over whether a given statement falls
within or without the protected area. These considerations account
for the expansion of the rule herewith to include evidence of
conduct or statements made in compromise negotiations, as well as
the offer or complete compromise itself.” See also Jack B.
Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §
408.03[5], at 408-13 (2d ed. 2001).
¶24 When Hernandez filed his notice of claim against the
state, he began settlement negotiations, as established by § 12-
821.01. See Crum, 186 Ariz. at 352, 922 P.2d at 317. The notice
therefore was a statement made in compromise negotiations and
inadmissible under the second sentence of Rule 408.
¶25 Moreover, in his notice, Hernandez did not admit the
validity of the state’s position; that it was not negligent. And
the state certainly has not admitted it was negligent or the amount
15
of Hernandez’s claim. See Advisory Committee Notes to Fed. R.
Evid. 408 (rule triggered by dispute as to validity or amount of
claim). When Hernandez filed his notice, it was entirely
reasonable to expect the state to challenge the validity or amount
of the claim. There was “an apparent difference of opinion.”
Dallis, 768 F.2d at 1307. It was not necessary that the state
specifically stake out a position contrary to Hernandez’s position.
Accordingly, I conclude that when a claimant files a notice of
claim pursuant to § 12-821.01, there is a dispute for purposes of
Rule 408.7 Further, a notice of claim is a statement made in
compromise negotiations because a person must disclose the basis
for liability and the amount for which he or she will settle the
claim, and the notice, therefore, triggers the negotiating process.
§ 12-821.01(A). Thus, the exclusionary principles of Rule 408
apply.
¶26 The remaining issue is whether, under Rule 408, factual
statements concerning the facts of an accident made in compromise
negotiations are admissible as prior inconsistent statements to
impeach a party’s testimony. As noted above, statements made in
compromise negotiations are not admissible to prove “liability for
or invalidity of the claim or its amount.” Ariz. R. Evid. 408.
7
If the notice is not protected by Rule 408, then any
initial demand letter would similarly fall outside its protection,
despite the perception of practicing attorneys that such letters
are statements made in the course of negotiations and protected.
16
But, such statements are admissible for “another purpose, such as
proving bias or prejudice of a witness, negativing a contention of
undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.” Id.
¶27 Impeachment of a party with a prior inconsistent
statement concerning the facts of the accident is not necessary to
prove bias and prejudice of a witness. A party is obviously
biased by self-interest in favor of its own position. No further
proof is necessary. And proof of bias and prejudice is different
from impeaching credibility. A witness can lack credibility
without bias or be credible even though biased. Moreover, the
other examples stated in the rule are completely distinct.
Accordingly, impeachment of a party does not come within the
examples of exceptions given in Rule 408.
¶28 Additionally, impeachment of a party with a prior
inconsistent statement concerning the facts of the case made during
compromise negotiations is not the same type of “another purpose”
as the examples listed in Rule 408. The examples in Rule 408 are
not exclusive but merely illustrative of the types of other
purposes that should be excluded from rule’s protection. Each
example involves issues collateral to the disputed claim. Thus,
impeaching a party with a prior inconsistent statement about the
facts of a claim is not the same type of “purpose” as the
exceptions listed in Rule 408.
17
¶29 Furthermore, “‘[t]he clear import of the Conference
Report as well as the general understanding among lawyers is that
[inconsistent] conduct or statements [made in connection with
compromise negotiations] may not be admitted for impeachment
purposes.’” EEOC v. Gear Petroleum, Inc., 948 F.2d 1542, 1545
(10th Cir. 1991) (offer of settlement letters “a thinly veiled
attempt to get . . .‘smoking gun’ letters before the jury”)
(quoting M. Graham, Federal Rules of Evidence 116 (2d ed. 1987))
(alterations added by court in EEOC). The bases for this
conclusion are twofold. First, there is a significant danger that
a jury will use impeachment evidence substantively, and, in that
way, directly contravene Rule 408. See id. at 1546. “‘The danger
that the evidence will be used substantively as an admission is
especially great when the witness sought to be impeached . . . is
one of the litigants in the suit being tried.’” Id. (ellipses
added) (quoting Jack B. Weinstein & Margaret A. Berger, Weinstein’s
Evidence ¶ 408[05] at 408-34 (1991)); see also Schlossman &
Gunkelman, Inc., 593 N.W.2d at 380 (“When the witness sought to be
impeached is also a litigant, the admissibility of statements made
during settlement negotiations increases the risk a jury may use
the evidence substantively as an admission of liability.”); 2 John
W. Strong et al., McCormick on Evidence § 266, at 186 (5th ed.
1999) (“Use of statements made in compromise negotiations to
impeach the testimony of a party, which is not specifically treated
18
in Rule 408, is fraught with danger of misuse of the statements to
prove liability, threatens frank interchange of information during
negotiations, and generally should not be permitted.”).
¶30 In fact, if the credibility of a party is impeached with
a prior inconsistent statement concerning the facts of an accident,
the only possible relevance of such evidence is to assist the jury
in determining “liability for or invalidity of the claim or its
amount.” Ariz. R. Evid. 408. A party’s credibility is not a
separate issue required to be proven or disproven to prevail on any
particular cause of action. Evidence concerning credibility merely
assists the jury in determining which set of facts it should adopt,
which will determine liability. Furthermore, a prior inconsistent
statement may be considered as substantive evidence of the facts
contained in it. See Ariz. R. Evid. 801(d); Joseph M. Livermore,
Arizona Practice: Law of Evidence § 608.3(F) (4th ed. 2000). When
the statement is made by a party concerning the facts of the
disputed claim, it will necessarily be used by the jury to
determine validity of the claim. And, because here the facts were
stipulated, the credibility of the plaintiff was only relevant to
determine the amount of his damage, another purpose specifically
excluded by Rule 408.
¶31 The second basis for concluding that statements
concerning the facts of the accident made in compromise
negotiations are not admissible to impeach a party is that a
19
contrary conclusion undermines the purpose of Rule 408, which is to
facilitate settlements by encouraging “free communication between
parties.” Advisory Committee Notes to Fed. R. Evid. 408. “The
philosophy of [Rule 408] is to allow the parties to drop their
guard and to talk freely and loosely without fear that a concession
made to advance negotiations will be used at trial.” Steven A.
Saltzburg & Kenneth R. Redden, Federal Rules of Evidence Manual 286
(4th ed. 1986); see also EEOC, 948 F.2d at 1545-46; Jack B.
Weinstein & Margaret A. Berger, supra § 408.08[1], at 408-29 (2d
ed. 2001) (“[C]are should be taken that an indiscriminate
application of this ‘exception’ to Rule 408 does not result in
undermining the rule’s public policy objective.”); Hjelmeset, 43
Clev. St. L. Rev. at 112. If such statements are admissible to
impeach a party, the incentive to make those statements is greatly
reduced and the purpose of Rule 408 is undermined.8 See EEOC, 948
F. 2d at 1546; Saltzburg, supra. The majority opinion undermines
the purposes of Rule 408.
¶32 The majority cites DeForest v. DeForest, 143 Ariz. 627,
694 P.2d 1241 (App. 1985), for the general proposition that
“impeachment evidence derived from compromise negotiations” may be
8
Obviously, a plaintiff cannot avoid filing a notice of
claim pursuant to A.R.S. § 12-821.01. But, under the majority’s
construction, a plaintiff would be encouraged to disclose as little
as possible. And, in the broader application of Rule 408, private
parties would have less incentive to make full and frank statements
during compromise negotiations.
20
admitted. In DeForest, the trial judge in a bench trial was called
on to reconstruct a spousal maintenance agreement that had been
previously approved by another judge but not set forth in a formal
decree. In the process, the husband testified that he had “never
been aware of [a spousal maintenance agreement in the amount
suggested by the judge who had approved the agreement].” Id. at
633, 694 P.2d at 1247. And, the husband objected to the admission
of a proposed decree, which he had signed, that included such an
agreement because it was part of compromise negotiations. The
trial court admitted the proposed decree for the limited purpose of
showing the husband’s knowledge of it, but expressly noted it would
not consider it as evidence of the terms of the ultimate agreement.
In that context, the court of appeals held that the trial court was
not required to exclude that evidence merely because it had been
presented in the course of compromise negotiations. In contrast,
the evidence here was admitted in a jury trial and it did involve
the actual facts of the incident, the purpose for which the trial
court in DeForest specifically stated the evidence would not be
used. The majority’s decision today represents a significant
expansion of the exception in DeForest.
¶33 Similarly, some of the other cases cited by the majority
do not go so far as allowing a party’s statement concerning the
facts of the case to be used for impeachment. Brocklesby v. United
States, 767 F.2d 1288, 1292-93 (9th Cir. 1985) (indemnity agreement
21
between defendants admitted to show status of parties and to
impeach credibility of defendants’ witnesses); Wyatt v. Security
Inn Food & Beverage, Inc., 819 F.2d 69, 71 (4th Cir. 1987)
(upholding exclusion of settlement of two prior similar actions);
Breuer Elec. Mfg. Co. v. Toronado Sys. of Am., Inc., 687 F.2d 182,
185 (7th Cir. 1982) (settlement evidence was properly presented to
rebut defendants’ assertion, in moving to set aside default, “that
they had not been aware of the issues until the suit was filed”);
Ozark Auto Transp., Inc. v. Starkey, 937 S.W.2d 175, 178 (Ark.
1997) (court could not conduct “meaningful review of the merits of
. . . [Rule 408] issue” because letter not in record and abstracted
portion did not contain settlement negotiations). But see
Cochenour v. Cameron Sav. and Loan, F.A., 160 F.3d 1187, 1190 (8th
Cir. 1998) (supporting majority holding); Davidson v. Beco Corp.,
753 P.2d 1253, 1255 (Idaho 1987) (same); El Paso Elec. Co. v. Real
Estate Mart, Inc., 651 P.2d 105, 108-09 (N.M. Ct. App. 1982)
(same).
¶34 In sum, the majority’s construction will “eviscerate Rule
408.” Jane Michaels, Rule 408: A Litigation Mine Field, 19 No. 1
Litigation 34, 37 (1992). It presents a very real danger that a
jury will use the evidence substantively for a purpose prohibited
by Rule 408 and it significantly undermines the policy underlying
Rule 408. In addition to undermining the purpose of Rule 408, the
majority’s construction does not enhance the truth finding process.
22
The majority focuses on false representations and, if the majority
opinion were limited to instances of clear perjury, the public
policy favoring ascertainment of the truth would militate in favor
of the evidence’s admission. See Rule 102, Ariz. R. Evid. But the
more likely victim of the majority’s interpretation of Rule 408 is
the innocent claimant, or lawyer who is mistaken as to a fact at
the very early stage of the process, such as in cases requiring a
notice of claim to be file within 180 days, or the defendant whose
attorney has and uses information from various sources that later
prove to be incorrect. Penalizing this party will not enhance the
truth finding process but will impede it.
¶35 Furthermore, under the majority’s construction, attorneys
will likely revert to the common law practice of making
hypothetical statements during compromise negotiations to avoid any
future impeachment. See Advisory Committee Notes to Fed. R. Evid.
408. The purpose of the second sentence of Rule 408 is to
eliminate this common law practice, which constituted “a preference
for the sophisticated, and a trap for the unwary.” Advisory
Committee Notes. In the alternative, attorneys will severely limit
the facts and inflate the demand put in § 12-821.01 notices or
claim and response correspondence, thereby frustrating the policies
underlying it. And, because attorneys are often the ones to make
statements during compromise negotiations, the majority’s
construction creates a risk of causing the disqualification of a
23
party’s attorney of choice so that he or she may be called as a
witness to impeach the party or explain why a particular statement
was made. See Hjelmeset, 43 Clev. St. L. Rev. at 110. Clearly,
this would cause more harm than good to our adversarial system.
¶36 Finally, even under the majority’s construction,
statements made in compromise negotiations that are offered to
impeach a party’s testimony may still be excluded under Rule 403,
Ariz. R. Evid. And I hope that trial courts will vigorously
exercise their discretion to prevent admissibility of prior
inconsistent statements by a party concerning the facts of the
accident made in settlement negotiations. In conducting a Rule 403
analysis in this context, a trial court must “carefully balance the
probative value of the evidence against the danger it will be used
for an improper purpose within the context of the policies
encouraging open and frank discussions during settlement
negotiations and fostering the truth-finding process through the
evaluation of a witness’s credibility.” Schlossman & Gunkelman,
Inc., 593 N.W.2d at 380.9 The better practice is to exclude this
type of impeachment in doubtful cases. See id. And, if it is
9
In the present case, for example, the facts were
stipulated and the statement was used in argument to attack the
credibility of the plaintiff, even though the statement was made by
the plaintiff’s lawyer and no foundation was laid to establish
whether the statement was based on information obtained from the
plaintiff, or was merely attributable to error or misconduct of
counsel. Even litigants with careless or unethical lawyers are
entitled to a fair hearing on the true facts.
24
admitted, a trial court must, upon request, and in other cases
should offer an appropriate limiting instruction to the jury. See
also Ariz. R. Evid. 105 (“When evidence which is admissible as to
one party or for one purpose but not admissible as to another party
or for another purpose is admitted, the court, upon request, shall
restrict the evidence to its proper scope and instruct the jury
accordingly.”).10 Such instructions are, of course, of limited
practical value and the better practice remains exclusion of the
evidence.
¶37 Based on the foregoing reasoning, I believe the better
approach is to exclude statements made in settlement negotiations
that are offered to impeach a party’s testimony. In my view, such
a construction of Rule 408 better serves the purposes underlying
the rule. Accordingly, I would reverse the trial court’s judgment.
______________________________
Joseph W. Howard, Judge*
CONCURRING:
___________________________
Stanley G. Feldman, Justice
*Pursuant to Ariz. Const. Article VI, Section 3, the Honorable
10
The majority likens this case to any other in which
evidence is admitted for a limited purpose. Ante. at ¶15 n.5. The
difference is that, in cases involving statements made in
compromise negotiations, the admission for the limited purpose
undermines the goal of Rule 408 of allowing free and open
settlement negotiations.
25
Joseph W. Howard, Judge of the Court of Appeals, Division Two, was
designated to sit on this case.
26