dissenting from order denying petition for rehearing and modifying opinion.
I believe we should grant Haight’s petition for rehearing to properly evaluate his claim that his trial counsel was ineffective in failing to introduce evidence that the Commonwealth offered Haight a plea bargain to a total sentence of life imprisonment without possibility of parole for twenty-five years. Although I joined the majority opinion when the Court originally considered Haight’s appeal from the trial court’s denial of RCr 11.42 relief, after reviewing the authority Haight cites in his petition, I believe Haight has demonstrated that the Court “misconceived the issues presented on the appeal or the law applicable thereto.”1
In our original opinion, we addressed Haight’s claim in Section X and found no deficient performance because KRE 408 and KRE 410 prohibited its introduction:
Haight maintains that defense counsel was ineffective by not introducing evidence during the penalty phase that the Commonwealth had previously entered into a plea bargain. He asserts that he has a right to have the jury which sentenced him consider mitigating evidence. Defense counsel was not ineffective for failing to introduce such an agreement. KRE 408 provides that compromise and offers of compromise are inadmissible. The general inadmissibility of withdrawn guilty pleas is also noted in KRE 410.
Haight argues his trial counsel should have introduced as mitigation evidence the “offer” made by the Commonwealth during plea negotiations — in this case, an offer to spare his life.2
Although we suggested a policy of “general inadmissibility” emanates from KRE 410, that rule actually states that such evidence “is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussion.”3 KRE 410 contains no limitations upon evidence introduced by the defendant.
The authority Haight cites in his petition convinces me that we incorrectly construed KRE 408 as embracing offers and statements made during plea negotiations contrary to the weight of authority limiting the identical federal rule’s scope to offers *450to compromise civil matters.4 I now recognize that the majority’s interpretation of KRE 408 illogically treated KRE 410 as redundant. The Kentucky Evidence Rules Study Committee’s Commentary to KRE 410 demonstrates that although policy judgments behind KRE 408 and KRE 410 are identical, each rule addresses a different context:
The considerations underlying Rule 408 on compromises and offers of compromise apply with equal force to criminal pleas, offers to plead, and plea discussions. Resolution of criminal cases through agreement is no less important than the resolution of civil cases through settlement. On the basis of these premises, Rule 410 adopts rules designed to remove evidentiary obstacles to candid discussions between the prosecution and defense in criminal cases and to protect defendants against subsequent use of ev-identiary products of the plea process.5
The Commonwealth cites only one case to the contrary, United States v. Verdoom,6 which dates back to shortly after the adoption of the Federal Rules of Evidence and in which the Eighth Circuit Court of Appeals based its conclusion largely on a Federal Rule of Criminal Procedure.7 The Verdoom Court does draw support from “the rationale of [FRE] 408,”8 and the Court describes FRE 408 as a rule which fosters plea-bargaining by encouraging confidential and meaningful dialogue. Courts, however, make decisions about whether evidence is admissible or not by examining the rules themselves, not the “policies” which underlie them. We should turn to those underlying policies only where the language of the rule itself is ambiguous. We can always amend the rules of evidence if we find that they do not serve the ends for which we adopted them. Our rules unquestionably embody the policies upon which they are based. Allowing the policy to consume the rule itself, however, allows the tail to wag the dog.
In any event, the language of KRE 408 itself plainly excludes evidence of compro*451mise or offers to compromise only when offered “to prove liability or invalidity of the claim or its amount.”9 Because of the different sentencing procedures employed in federal court, none of the federal authority addressing FRE 408’s relation to offers or statements made during plea negotiations in criminal cases concerns the admissibility of such statements during a separate jury sentencing procedure like the one we have in Kentucky.10 Even if this Court were to construe KRE 408 to embrace offers and statements made during plea negotiations by adopting an unwarranted and expansive interpretation of “liability” and “claim,” we would fall on our backsides before we could bend over far enough to interpret “its amount” to include a jury’s sentencing determination, especially a sentence of death.
In my opinion, the modified opinion is, at best, a slight improvement. The Court now recognizes that the question of KRE 408’s applicability to offers and statements made during plea negotiations is a question of first impression for this Court. Instead of answering that question, however, we “fast-forward” to the conclusion and decide that, regardless of this Court’s interpretation of KRE 408, Haight’s trial counsel did not perform deficiently under Strickland by failing to introduce such evidence. I find incredulous our basis for that conclusion, which I would paraphrase as “Because we haven’t told attorneys whether this evidence would be admissible, an attorney’s failure to introduce it cannot be deficient performance.” I find it inexcusable, however, for this Court, after articulating such a standard for deficient performance, to decline to answer the substantive question, allow the issue to remain unresolved, and offer no guidance to counsel in future cases.
My perceptions are no doubt colored by the fact that, after revisiting the KRE 408 issue, I no longer find it murky, or particularly close. I believe the question of whether the general relevancy requirement at KRE 401 would allow a defendant to introduce evidence of the Commonwealth’s offer as mitigation evidence is far closer,11 however, and I believe the Court should grant the petition for rehearing to finally determine both issues. As concerned as I am that the modified majority opinion perpetuates the error we committed originally, however, I am even more troubled by the modified opinion’s contention that no deficient performance can result from trial counsel’s failure to make arguments new to this Court.12 This cou-*452tention raises the Strickland deficient performance bar even higher and discourages the type of innovative advocacy necessary to the defense of a capital case.
I believe this Court should grant Haight’s petition for rehearing specifically to reconsider his allegation concerning his trial counsel’s failure to introduce evidence that the Commonwealth offered him a plea bargain which would have spared his life. My review of the law leads me to believe that this Court misconceived the law applicable to Haight’s claim when we held that such evidence would have been inadmissible under KRE 408. We should decide this issue and properly evaluate Haight’s claims of ineffective assistance of counsel for the benefit of the bench and bar.
STUMBO, J., joins.. CR 76.32(l)(b).
. See Haight v. Commonwealth, Ky., 760 S.W.2d 84, 85 (1988):
As a result of these [plea] negotiations, ... the Commonwealth made an offer to appellant whereby, in return for his guilty plea to two counts of murder and two counts of robbery in the first degree, it would recommend a sentence of life imprisonment without possibility of parole for a period of twen1y-five years.
Id.
. KRE 410 (emphasis added).
. See 29 Am.Jur.2d (Evidence) § 512:
[I]t should be noted that Rule 410 generally governs admissibility of evidence of guilty pleas and plea negotiations. It has been held that the rule excluding from evidence offers of compromise or settlement of a claim which is disputed as to either validity or amount applies only to civil litigation, since the reference to "a claim which was disputed as to either validity or amount” does not easily embrace an attempt to bargain over criminal charges. Negotiations over criminal charges or a plea bargain do not ordinarily constitute discussions of a "claim" over which there is a dispute as to "validity” or "amount.”
Id. See also Charles Alan Wright and Kenneth W. Graham, 23 Federal Practice and Procedure § 5306 at 216-219 (1980) ("It seems odd to refer to the prosecution's case against a criminal defendant as a 'claim' ... The arguments [in favor of doing so] are not convincing.” Id.); United States v. Baker, 926 F.2d 179, 180 (2nd Cir.1991); United States v. Graham, 91 F.3d 213, 218-219 (D.C.Cir.1996).
. KRE 410 (Evidence Rules Study Committee Commentary). See also Robert G. Lawson, Kentucky Evidence Law (3rd Ed.) § 2.50 & 2.55 (Michie 1993) ("With one important alteration, KRE 408 simply codifies ... longstanding rules.” Id. § 250 at 134. "The principles described in KRE 410 are akin to the rules that relate to offers of compromise and settlements.... They are new to Kentucky Law ....” Id. § 255 at 137.).
. 528 F.2d 103 (8th Cir.1976).
. Id. at 107 ("Plea bargaining is sanctioned by recent amendments to the Federal Rules of Criminal Procedure. Further, Fed. R.Crim. 11(e)(6) (effective August 1, 1975) provides for the general inadmissibility of offers to plea and related statements in connection therewith.” Id.).
. Id.
. KRE 408.
. See RCR 9.84; KRS 532.055.
. A offer by the Commonwealth to recommend a life sentence in exchange for a guilty plea to a capital offense would not be direct evidence "bearing on the defendant’s character, prior record or circumstances of the offense, or relative to one of the specified statutory mitigating circumstances,” Jacobs v. Commonwealth, Ky ., 870 S.W.2d 412, 419-420 (1994) citing Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Given a prosecutor's special ethical responsibilities, see SCR 3.130(3.8) comment 1 ("A prosecutor has the responsibility of a minister of justice and not simply that of an advocate” ld.); Bailey v. Commonwealth, 193 Ky. 687, 237 S.W. 415, 417 (1922) (”|T|he duly of a prosecuting attorney is not to persecute, but to prosecute .... He should always be interested in seeing that the truth and the right shall prevail .... ” Id.), such an offer might, however, be inferential evidence of the strength of a defendant’s other mitigating evidence.
. I dispute the majority’s characterization of Haight’s argument as “novel.” First, this Court's past use of that term creates an pejorative connotation roughly equivalent to “frivolous.” See, e.g., Commonwealth v. Cooper, Ky., 899 S.W.2d 75, 78 (1995) ("We have admonished against 'novel theories to revise well-established legal practice and princi*452ple[.]'" Id.); Holbrook v. Knopf, Ky., 847 S.W.2d 52, 55 (1992) ("We have no intention that such cases should encourage lawsuits espousing novel theories ...." Id.); Neel v. Wagner-Shuck Realty Co., Ky., 576 S.W.2d 246, 249 (1978) ("This is a novel theory unsupported by reason or authority.” Id.). My examination of the merits of Haight’s interpretation of KRE 408 leads me to believe that his interpretation is far from frivolous. Second, I believe it is the Commonwealth and not Haight who has suggested this "novel theory.” Haight’s RCr 11.42 petition merely contended that trial counsel should have introduced this evidence, and appears to have relied on the presumption of admissibility for relevant evidence contained in KRE 402 (“All relevant evidence is admissible, except as otherwise provided ...." Id.). The Commonwealth first suggested that KRE 408 would prohibit the introduction of this evidence.