July 17, 2010
Is It Your Recollection?: Florida Court Varies From Prior Florida Precedent In Recorded Recollection Ruling
A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.
So, for a recorded recollection to be admissible under this rule, does the declarant need to lay a foundation for its admission by testifying at trial that he or she recorded the statement when the described events were fresh in his or her mind and attesting to the accuracy of the statement? According to the recent opinion of the District Court of Appeal of Florida, Fifth District, in its recent opinion in Polite v. State, 2010 WL 2787457 (Fla.App. 5 Dist. 2010), the answer is "no," despite prior Florida precedent.
In Polite, Darius Polite was convicted of burglary of a dwelling with an assault or battery, robbery with a firearm, aggravated assault with a firearm, and possession of a firearm by a convicted felon. Falisa Levine was one of the alleged victims of these crimes, and, one hour after the subject crimes, she gave a sworn written statement to police, detailing the crimes and identifying Polite by name as one of the robbers.
At trial, Polite "testified that three men came to her house, kicked the door open, and put a gun to her daughter's face. Beyond this, [she] testified that she could not remember any more details at the time of trial." The prosecution thereafter had Levine read her sworn statement to the jury." On cross-examination, Levine testified that she could have made a mistake in her statement as "[t]hey was pressuring [her]" and she "[did not] even know if [she] got the right person."
After he was convicted, Polite appealed, claiming, inter alia, that Levine's statement was inadmissible hearsay." And, according to polite, the statement did not qualify for admission under Section 90.803(5) of the Florida Statutes because, for a recorded recollection to be admissible under this rule, the declarant need to lay a foundation for its admission by testifying at trial that he or she recorded the statement when the described events were fresh in his or her mind and attesting to the accuracy of the statement.
The District Court of Appeal of Florida, Fifth District, found that Polite failed to preserve this issue for appellate review but found that he would have been unsuccessful even if he had. The court did first acknowledge that
Polite correctly points out that Florida case law, as it stands currently, does not allow a written statement to qualify as a past recollection recorded unless the declarant lays the foundation for its admission with testimony at trial that he or she recorded the statement when the described events were fresh in his or her mind, and attests to the accuracy of the statement (either by testifying that he or she made an accurate record of the fact or event or that he or she is confident that the facts would not have been written unless they were true). E.g., Hernandez v. State, 31 So.3d 873 (Fla. 4th DCA 2010) (holding that where witness was unable, or unwilling, to attest to the accuracy of the taped conversation, the state was not able to show it could introduce the same as a past recollection recorded); Smith v. State, 880 So.2d 730 (Fla. 2d DCA 2004) (holding audio-tape recordings were inadmissible as past recollection recorded where witnesses did not testify that the recordings accurately reflected their memories of events when made); Montano v. State, 846 So.2d 677 (Fla. 4th DCA 2003) (holding tape recorded statement given to police shortly after criminal incident was inadmissible under section 90.803(5) when witness did not remember its contents and did not testify that it correctly reflected her knowledge or that she tried to be truthful at the time of the making of the statement).
But the court disagreed with this precedent, finding that these cases were
contrary to the plain language of the statute and rule. Section 90.803(5) simply requires as a foundation that the statement is “shown to have been made by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.” The statute does not say that this “showing” must always (or only) be made by testimony from the declarant. A plain reading of the statute would allow admission of the statement so long as the state presented evidence (from any source) sufficient to support a finding that the statement was made when the matter was fresh in the witness' mind, and that it was accurate. This is the approach taken by several cases applying the companion provision in the federal rules relating to past recollection recorded- Federal Rule of Evidence 803(5)-or identical state evidence rules.
Applying this approach to the case before it, the court concluded that
the victim identified the written statement as the statement she gave to police on the day of the crime, approximately one hour after the events took place, and testified that she told the police what happened when they came to her house. Given the totality of the circumstances in this case, including that the witness swore to the statement as true at the time she gave it; that she was still consumed with the emotions of the event when talking with police; and that other evidence corroborated her statement, we find that there was sufficient evidence to lay a foundation for admission of the statement under section 90.803(5), even though the declarant herself never confirmed the accuracy of the statement at trial.
I agree with this approach. Like Federal Rule of Evidence 803, Section 90.803 of the Florida Statutes sets forth hearsay exceptions in which the availability of the declarant is immaterial. In other words, hearsay can be admissible under these exceptions, even if the declarant is unavailable. And if the declarant can be unavailable, then clearly the approach previously taken by the Florida courts is wrong.
That said, I am not sure about the court's specific conclusion. I understand what the court was saying in the last block quote above. But what about Levine's admission that she could have made a mistake in her statement as "[t]hey was pressuring [her]" and she "[did not] even know if [she] got the right person." It seems to me that this testimony easily could have been enough to deem her alleged recorded recollection inadmissible.
July 16, 2010
Divide And Prejudice?: Arizona Court Finds No Prejudicial Joinder In Sex Abuse Case Based On Rule 413(a)
If a defendant is charged with several unrelated crimes, he has a good chance of having several counts severed based upon prejudicial joinder. In such a case, joinder would be prejudicial because if the defendant were given separate trials for each count, evidence of each alleged crime would likely be inadmissible in every other trial under Federal Rule of Evidence 404. Federal Rule of Evidence 413(a), however, provides that
In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
Thus, if a defendant is charged with several unrelated crimes of sexual assault, he will have a tough time proving prejudicial joinder because evidence of each alleged crime would likely be admissible in every other trial under Federal Rule of Evidence 413(a), as was the case with the recent opinion of the United States District Court for the District of Arizona in United States v. Brown, 2010 WL 2771882 (D. Ariz. 2010).
In Brown, Anderson Brown entered into a plea agreement with the prosecution under which he would have pleaded guilty to sexual abuse with a minor. The court, however, rejected the plea deal. Thereafter, the government filed a superseding indictment which added two additional counts for sexual contact against a separate victim. Brown, inter alia, moved to sever the newly charged counts due to prejudicial joinder, but the United States District Court for the District of Arizona denied the motion. According to the court,
In this case, joinder would not be prejudicial because the evidence relating to each count likely would be admissible in each trial even if the counts were severed. Because the counts are sex-related crimes, the Federal Rules of Evidence permit the admission of other similar acts for any relevant purpose. See Fed.R.Evid. 413(a)....In a very similar case, the Eighth Circuit held that severance was not prejudicial because the evidence relating to other sexual acts would have been admissible even in separate trials. United States v. Running Horse, 175 F.3d 635, 637 (8th Cir.1999). In Running Horse, the defendant was charged with ten counts of sexual abuse against the same victim, as well as one count against a different victim....Defendant sought to sever the count against the different victim....Affirming the district court's denial of severance, the Eighth Circuit explained that the defendant was not prejudiced because Federal Rule of Evidence 413 would have allowed evidence of the other ten counts of sexual abuse in a separate trial for the eleventh count....Likewise, it is not yet apparent that the Defendant would experience prejudice because the Rules of Evidence would allow the same evidence to be admitted even if the Court severed the counts.
July 15, 2010
Drunk Dialing: Eighth Circuit Assumes 911 Call Was Improperly Admitted As Excited Utterance Based On Lack Of Personal Knowledge
Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Meanwhile, Federal Rule of Evidence 602 provides that
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.
And, as the recent opinion of the Eighth Circuit in United States v. Erickson, 2010 WL 2721026 (8th Cir. 2010), makes clear, a party cannot introduce an excited utterance unless it establishes that the declarant had personal knowledge of the startling event or condition.
In Erickson, Robert Erickson was charged with multiple counts of assault with a dangerous weapon and assault resulting in serious bodily injury, and the prosecution established, inter alia, the following facts at trial:
On January 1, 2008, Erickson attended a party at Sherry Erickson's residence at which some eight people had gathered and were drinking heavily throughout the night. Most of the individuals at the party were intoxicated, with the exception of Samantha Kitteaux, Erickson's cousin, who, because of her pregnancy, was not drinking. Erickson became increasingly agitated as the evening wore on, expressing anger that someone had stolen liquor from him and claiming that members of the group wanted to "jump him." At about 3:00 a.m. on January 2, Erickson became involved in an argument with Anthony Kitteaux. Erickson walked out of the residence and onto a front porch area. Anthony Kitteaux followed after him to see what Erickson was doing. In order to step outside, the parties had to pull back a blanket that had been hung over the doorway to provide additional insulation. As Anthony Kitteaux pulled back the blanket to look outside, Erickson slashed him across the face with a knife, leaving a large flap of skin hanging from Kitteaux's cheek. Kitteaux yelled, "ow, that mother f---er cut me" as he retreated back inside. Eli Antoine, who had been sitting inside, went to the door, whereupon Erickson swung the knife again, slashing Antoine across the palm of his left hand and lacerating the tendons and nerves connecting several of his fingers.
Erickson fled the residence on foot and several of the individuals who had been present at the party chased after him. Samantha Kitteaux and another individual, Frank Swalley, remained behind and made two 911 emergency calls as they attempted to help with the victims' wounds. During the second 911 call, Frank Swalley got on the phone and identified Erickson as the assailant. After arriving on the scene and briefly speaking with the witnesses, the police began searching for Erickson and apprehended him within walking distance of the residence. Erickson was arrested and taken to the local jail, where the officers took pictures of what appeared to be blood on his hands.
Frank Swalley testified that Erickson became agitated during the evening and was hollering about someone trying to jump him. But Frank Swalley had no recollection of the stabbing or making a 911 call. Rather, he claimed that he had passed out from drinking and was awakened only after the assaults had already taken place. He testified that after he woke up he saw blood gushing from Eli Antoine's wound and used his belt as a makeshift tourniquet to stop the bleeding.
The prosecution later introduced testimony from a 911 dispatcher who claimed "that an individual named 'Frankie'-recognized now as Frank Swalley-had identified Erickson as the attacker."
After he was convicted, Erickson appealed, claiming, inter alia, that Swalley's statements to the 911 dispatcher were inadmissible hearsay. The Eighth Circuit found that Swalley's statement met all of the requirements to qualify as excited utterances under Federal Rule of Evidence 803(2) but found that
The problem with the government's argument...[wa]s that the trial testimony did not make it clear how Swalley obtained the information that he related over the phone. The trial testimony indicated that Frank Swalley had passed out from drinking and was awakened only after the attack had already occurred. As related above, Frank Swalley testified that he had no recollection of the 911 call. The lack of detail in the trial record thus makes his statement difficult to evaluate because it is not clear how he came to the conclusion that Erickson had committed the crime.
According to the court,
In this case there are a number of conceivable explanations for Frank Swalley's belief that Erickson was the assailant-for example, someone who witnessed the attack could have told him; he might have observed people leaving the residence to chase after Erickson; or he could have based his conclusion on his earlier observation of Erickson's erratic, aggressive behavior. Because there is no way to identify the basis of the statement with any certainty, however, it is problematic whether it was properly admitted as an excited utterance.
I would go a bit further than the Eighth Circuit. By Swalley's own admission, he did not observe the assault but merely woke up in its aftermath. It is thus clear that he did not have personal knowledge of the assault and could not have testified regarding the assault or had his statements regarding the assault admitted under an exception to the rule against hearsay. In effect, the Eighth Circuit assumed the same result but found that any error in admitting Swalley's statements was harmless giving the otherwise overwhelming evidence of Erickson's guilt.
July 14, 2010
Northern District Of California Permits Defendants To Interrogate Title IX Plaintiff About Whether She Consented to Teacher’s Sexual Behavior When She Was 15
A plaintiff claims that she was 15 years-old when she was subjected to sexual molestation by her then 38 year-old teacher at a charter school. Accordingly, she brings a Section 1983 action (1) against the school and its director/principal for failure to train and supervise, and (2) against the teacher for denial of equal protection. She also files a Title IX sex discrimination claim against all three defendants, a state law claim for negligent hiring and supervision against the school, and a state law invasion of privacy claim against the director/principal, who allegedly made a public announcement to the student body, disclosing details of the sexual conduct between the teacher and the plaintiff. During a deposition of the plaintiff, the parties disagree about the proper scope of questioning. Among other things, defense counsel wants to interrogate the plaintiff about whether she "consented" to the sexual encounters with her teacher and whether the teacher's sexual behavior was "unwelcome" by her. The parties thereafter make their arguments to the court on the issue. How should the court rule? In its recent opinion in Doe v. Willits Unified School Dist., 2010 WL 2524587 (N.D. Cal. 2010), the United States District Court for the Northern District of California permitted such questioning. I strongly disagree.
Courts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case, and cannot be obtained except through discovery.
The court thus had to decide whether the plaintiff's "consent" to the teacher's sexual behavior was part of an element or defense in the case, and ostensibly found that it could only be an element in connection with the plaintiff's Title IX claim. The court then noted on the one hand "that the question has not yet been addressed in th[e Ninth C]ircuit." On the other hand, it found that each of the cases outside of the Ninth Circuit which had specifically considered whether consent is an element of a Title IX case had "held that consent is not part of the cause of action." Particularly persuasive for me was the opinion in Mary M. v. North Lawrence Community Sch. Corp., 131 F.3d 1220 (7th Cir. 1997), in which the Seventh Circuit held that if "children cannot be said to consent to sex in a criminal context, they similarly cannot be said to welcome it in a civil context. To find otherwise would be incongruous."
But rather than join all other courts and preclude the subject interrogation, the Northern District of California found that
because the law in this circuit is unsettled, and because this Court does not wish to prematurely define the elements of the causes of action in this case (a question more properly addressed by the trial judge), this Court will allow limited questions on the issue of whether plaintiff welcomed or consented to her sexual encounters with [the teacher]. Defendants therefore generally may ask plaintiff whether she wanted to engage in sexual conduct with [the teacher], and/or whether she initiated the sexual relationship.
Really? Rather than step on the toes of the trial judge or the Ninth Circuit, the court decided to allow interrogation of a child as to whether she "consented" to sexual relations with her 38 year-old teacher when she was 15? How exactly does such a conclusion cohere with the Advisory Committee's declaration that courts should presumptively issue protective orders and the categorical chorus of precedent precluding such interrogation? In seemingly trying to protect its opinion from appellate review, the court removed protection from the plaintiff.
July 13, 2010
Killing Me Softly: Court Of Appeals Of Ohio Case Reveals That Dying Declaration And Excited Utterance Exceptions Are Often Intertwined
a statement made by a declarant, while believing that his or her death was imminent, concerning the cause of what the declarant believed to be his or her impeding death.
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
And, as the recent opinion of the Court of Appeals of Ohio, First District, in State v. Washington, 2010 WL 2697078 (Ohio App. 1 Dist. 2010), makes clear, statements covered by the former hearsay exception will almost always also be covered by the latter hearsay exception.
In Washington, Todd Kendal Washington was convicted of aggravated murder and aggravated robbery based upon the shooting death of Donald Williams. According to testimony presented at trial, after Williams was shot four or five times, he fell to the ground, stating, "my stomach is burning." As nearby neighbors called 911, Williams squeezed his fiancée's hand as she implored him to stay with her. Thereafter, Sergeant Michael Machenheimer and Officer Ronald Fuller from the Cincinnati police arrived on the scene while Williams was still lying injured in the street. Machenheimer asked Williams if he knew who had shot him, and he said, "Yes, his name is Kendal." Meanwhile, Fuller testified that Williams had told him that "Kendal shot me." Moments after making these statements, Williams died.
After he was convicted, Washington appealed, claiming, inter alia, that Williams' statements identifying him were inadmissible hearsay. The Court of Appeals of Ohio disagreed, finding that Williams' statements were admissible under Ohio Rule of Evidence 804(B)(2) because
[t]he evidence in this case supports the trial court's finding that Williams believed that his death was imminent. He had been shot four to five times at close range, and he had fallen to the ground, stating "my stomach is burning." He squeezed his fiancée's hand as she implored him to stay with her. His eyes kept rolling back in his head, and his breathing was labored. Although he was able to tell police officers that "Kendal" had shot him, he died moments later. Under the circumstances, we cannot hold that the trial court abused its discretion in admitting the statements into evidence as dying declarations.
Moreover, the court found that
[e]ven if Williams's statements were not dying declarations, the trial court found that they would also have been admissible under the hearsay exception for excited utterances. Evid.R. 803(2) defines an excited utterance as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."...In this case, Williams was under the stress of an undoubtedly startling condition-he had been shot four to five times. He immediately identified "Kendal" as the person who had just shot him.
Indeed, it is difficult to think of a case in which a statement would qualify as a dying declaration but not qualify as an excited utterance. I guess that the only such case would be one in which the victim wanted to die or calmly accepted his fate before making his statement. In such a case, the victim would not (still) be under the stress of the startling even causing his death, making the excited utterance exception inapplicable.
July 12, 2010
Updated Submission Guide for Online Law Review Supplements Posted On SSRN
The fall submission season is almost upon us, and today, I updated my Submission Guide for Online Law Review Supplements. I did not add any new online supplements to my guide, but this version of the guide contains some important changes that some journals made to their submissions guidelines. You can download a copy of the updated guide from SSRN by clicking here.
Georgia (Im)peach(ment): Supreme Court Of Georgia Rejects Due Process Challenge To Felony Impeachment Rule
Federal Rule of Evidence 609(a)(1) provides that
For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused (emphasis added).
Meanwhile, OGCA Section 24-9--84.1(a)(2) provides that
For the purpose of attacking the credibility of a witness, or of the defendant, if the defendant testifies:
(2) Evidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant (emphasis added).
And, as the recent opinion of the Supreme Court of Georgia in Childs v. State, 2010 WL 2680587 (Ga. 2010), makes clear, courts have found that both of these rules do not violate defendants' due process rights.
In Childs, Isaiah Childs was convicted of one count of the sale of cocaine. At trial, Childs neither testified nor presented any evidence, with defense counsel stating that Childs would not testify because OGCA Section 24-9--84.1(a)(2) would then allow the State to impeach him with evidence of his prior felony convictions for the possession of cocaine, the possession of marijuana, and burglary.
After he was convicted, Childs appealed, claiming, inter alia, that the statute was unconstitutional on the ground it unconstitutionally burdened his right to testify and therefore violated his due process rights. The Supreme Court of Georgia disagreed, noting that the United States Supreme Court rejected a similar challenge to Federal Rule of Evidence 609(a)(1) in Ohler v. United States, 529 U.S. 753 (2000), finding that
"It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination....It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like....Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify."
The Georgia Supremes then noted that "[o]ther courts to consider the issue have likewise held that due process is not violated by permitting the impeachment of a testifying defendant with prior convictions." The court "agree[d] with this apparently unanimous authority and also note[d] that, in Georgia, defendants are actually subject to more limited impeachment than all other witnesses who have prior felony convictions."
(If you look at the language of Federal Rule of Evidence 609(a)(1), you will see that federal law also makes defendants subject to more limited impeachment than all other witnesses who have prior felony convictions. And if you compare Federal Rule of Evidence 609(a)(1) to OGCA Section 24-9--84.1(a)(2), you will see that defendants are subject to more limited impeachment under the latter rule than under the former rule.).
July 11, 2010
It's Settled: Court Of Appeals Of Minnesota Finds Affidavit Seeking To Vacate Settlement Not Covered By Rule 408
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.
And, as the recent opinion of the Court of Appeals of Minnesota in Engle v. Engle, 2010 WL 2650433 (Minn.App. 2010), makes clear, an affidavit seeking to vacate a settlement is not covered by Rule 408.
In Engle, in April 2004, Bonnie Engle obtained an order of protection against her husband, Joseph Engle, and petitioned for the dissolution of their more than 30-year marriage. Eventually, the parties entered into a settlement agreement, under which certain items of personal property were specifically awarded to each party, and the remaining personal property was to be sold at an auction, with the proceeds to be split evenly between the parties.
In May 2006, however, Joseph
moved to vacate the settlement agreement, claiming it was not an equitable distribution of assets and that he did not understand the agreement when he entered into it. [Bonnie] moved to enforce the agreement and for attorney fees. As part of his motion to vacate the settlement, [Joseph] submitted an affidavit that included a proposed equitable division of assets. In his affidavit, [Joseph] alleged that the property division under the settlement resulted in an award to [Bonnie] of assets valued at $466,450 and that the assets awarded to him were worth only $389,200. He reached his asset valuation by valuing the personal property awarded to him under the settlement-a Camaro ($10,000), a motorcycle ($1,800), all of his tools and tool boxes ($8,500), a Suburban ($1,000), a Jeep ($500), and “various personal property” ($5,000)-at $26,800. To correct this alleged inequity, he “request [ed] that all the vehicles and equipment stored in the sheds, the depot and outside on the property and up at [the parties' son]'s farm” be awarded to him. He claimed that this property “together with the personal property [he] would receive under the settlement [agreement], [was] worth approximately $50,000.” [Joseph] also requested $18,400 in stocks and his 401(k) to allegedly balance the division of assets between the parties. His motion was denied.
Meanwhile, Bonnie's motion to enforce the settlement agreement was granted, and a dissolution judgment memorializing the terms of the settlement agreement was entered. The auction agreed to by the parties was thereafter held and grossed approximately $40,000, which netted the parties approximately $13,000 each. Joseph thereafter appealed, moving to enforce the judgment and for damages, claiming that the items sold at the auction included items that he was specifically awarded in the settlement agreement and that the auction did not include all of the personal property available for sale. Relying in part on Joseph's affidavit, the court denied his motion, finding that (besides two trailers) "none of the personal property specifically awarded to husband in the dissolution was intentionally sold at the auction and that there was not sufficient evidence to show that any property that should have been included in the auction was intentionally excluded.
Joseph thereafter appealed, claiming, inter alia, that the affidavit was inadmissible under Minnesota Rule of Evidence 408. The Court of Appeals of Minnesota disagreed, initially noting that the Rule "states that evidence is inadmissible if (1) it constitutes an offer to compromise a disputed claim, (2) it is offered to prove the invalidity of the claim or the amount of the claim, and (3) it is not being offered for a different, legitimate purpose." The court then held that the affidavit was not inadmissible under this Rule because "[t]he purpose of the affidavit was to show why the settlement that had already been reached should be vacated. Because it was not a settlement offer, the affidavit [wa]s not inadmissible under rule 408."