EvidenceProf Blog

Does Rule 408 Apply to Discovery or Just to Admissibility?

Federal Rule of Evidence 408 reads as follows:

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

It is often said that the rules of evidence are rules of admissibility and not rules of discovery, but the rules might be a bit "flexible" in cases involving settlement negotiations.

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10th Circuit Holds Entire 911 Call May be Admitted Without Parsing Each Individual Sentence

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

So, let's say that a declarant -- Dana -- makes a 911 call. Should the court assess each sentence in the call to determine whether it constitutes a "present sense impression" under Rule 803(1)? Or can the court simply assess the call as a whole. This was the question addressed by the Tenth Circuit in its recent opinion in United States v. Lovato, 2020 WL 949942 (10th Cir. 2020).

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The Third of Kentucky's Three Privity-Based Hearsay Exclusions

Kentucky Rule of Evidence 801A(c)(3) reads as follows:

(c) Admission by privity:...

(3) Predecessors in litigation. Even though the declarant is available as a witness, when the liability, obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, or when the claim or right asserted by a party to a civil action is barred or diminished by a breach of duty by the declarant, evidence of a statement made by the declarant is not excluded by the hearsay rule when offered against the party if the evidence would be admissible against the declarant in an action involving that liability, obligation, duty, or breach of duty.

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The Second of Kentucky's Three Privity-Based Hearsay Exclusions

Kentucky Rule of Evidence 801A(c)(2) reads as follows:

(c) Admission by privity:...

(2) Predecessors in interest. Even though the declarant is available as a witness, when a right, title, or interest in any property or claim asserted by a party to a civil action requires a determination that a right, title, or interest existed in the declarant, evidence of a statement made by the declarant during the time the party now claims the declarant was the holder of the right, title, or interest is not excluded by the hearsay rule when offered against the party if the evidence would be admissible if offered against the declarant in an action involving that right, title, or interest.

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