"Washington's ER 408 differs from the federal rule only in style"
How later courts described this case
- "Washington's ER 408 differs from the federal rule only in style"
- in exercising its discretion in ruling on an ER 608 objection, the court “may consider whether the instance of misconduct is relevant to the witness’s veracity on the stand and whether it is germane or relevant to the issues presented at trial”
- “In exercising its discretion [to admit or exclude evidence under ER 608(b)], the trial court may consider whether the instance of misconduct is relevant to the witness’s veracity on the stand and whether it is germane or relevant to the issues presented at trial.”
Written by the judges who cited it.
The opinion
¶41 C. Johnson, J.
(dissenting) — The majority incorrectly concludes that the exclusionary protections of ER 408 apply only to civil cases. In order to protect a victim’s right to prompt civil settlement, the directives of the civil rules generally, and the language and intent of ER 408 specifically, make ER 408 applicable to criminal as well as civil proceedings. Otherwise, settlement negotiations would be discouraged in many civil cases. Even in a routine traffic accident, an offer to settle could incriminate the defendant in a later criminal proceeding.
¶42 ER 1101(a) provides that the evidence rules apply to both civil and criminal proceedings; ER 408 expressly references applicability to criminal prosecutions; and the treatise on Washington Practice supports the conclusion that the rule applies in both criminal and civil actions.
¶43 ER 1101(a) states that the evidence rules apply “to all actions and proceedings” in Washington courts. Under ER 1101, the rules of evidence, including ER 408, apply in *354 all proceedings unless some specific language limits applicability. Nothing in the language of ER 408 specifically limits its applicability to civil cases.
¶44 Further, the majority acknowledges that at least part of ER 408 does apply to criminal proceedings but fails to explain effectively why the remainder of the rule does not similarly apply. The rule states that it “does not require exclusion when the evidence is offered for . . . proving an effort to obstruct a criminal investigation or prosecution.” ER 408. There is no question this language refers to criminal acts. The fact that part of the rule applies in criminal prosecutions supports the conclusion that the remainder of the rule similarly applies. The majority claims that this reference “does create some ambiguity” and proceeds to give a historical and definitional justification of why it does not apply to criminal cases. Majority at 345-48. Such analysis is unnecessary.
|45 From a policy perspective, it makes sense that all of ER 408 applies to criminal cases, as well as civil proceedings. Though primarily related to civil cases, the rule also has at least limited relevance in criminal proceedings. 5A Karl B. Tegland, Washington Practice: Evidence Law and Practice § 408.3, at 52 (4th ed. 1999). The main purpose of the rule is to encourage settlement. Regardless of how remote the possibility of criminal charges, individuals would be less inclined to settle cases if the mere act of settlement negotiations might incriminate them in some later criminal proceeding. David P. Leonard, The New Wigmore, A Treatise on Evidence, Selected Rules of Limited Admissibility § 3.7.3, at 372 (2002).
¶46 A defendant’s action will commonly constitute criminal as well as civil liability. In such a situation, ER 408 would “protect negotiations in the civil proceeding from disclosure in the criminal proceeding.” 5A Tegland, at 52. Further, the trend of encouraging negotiations between parties often creates a prompt settlement that is better and more satisfying for the victim than a criminal sanction later against the perpetrator. Christopher B. Mueller & Laird C. *355 Kirkpatrick, Federal Evidence § 138 n.17 (2d ed. 2004). The opportunity for prompt compensation should not be denied to victims of certain civil cases simply because the defendant is concerned that criminal charges might be brought against him or her later for the same offense.
¶47 There are few legal or policy arguments for limiting ER 408’s applicability to civil cases. Applying ER 408 to criminal cases has little effect on law enforcement efforts. Only statements made through civil negotiations are inadmissible under ER 408 and do not include admissions made to third parties or law enforcement. Additionally, a person cannot hide behind this rule to keep out evidence that the defendant bribed or threatened witnesses or authorities. 5A Karl B. Tegland, Washington Practice: Evidence Law and Practice § 408.7, at 11 (4th ed. Supp. 2005).
¶48 Ultimately, if ER 408 does not apply to criminal cases, many civil defendants would be reluctant to engage in negotiations. Under that interpretation of the rule, attorneys might be subject to a claim of malpractice if they did not discourage their clients from engaging in certain civil settlements. Such a result would be unfortunate and absurd considering the rule was expressly created to encourage civil settlements.
¶49 Statements made in civil settlements should be excluded from later civil and criminal proceedings, according to ER 408. As the majority states, this conclusion is supported by cases from other federal and state appellate courts. United States v. Hays, 872 F.2d 582, 589 (5th Cir. 1989); United States v. Bailey, 327 F.3d 1131, 1146 (10th Cir. 2003); State v. Gano, 92 Haw. 161, 167 , 988 P.2d 1153 (1999). The application of ER 408 to all proceedings, criminal and civil, serves the exact purpose for which the rule was created — to encourage the effective negotiation of civil claims. The majority’s interpretation of ER 408 is inconsistent with the intent and language of this rule. The convic *356 tion should be reversed and the case remanded back to the trial court for further proceedings.
Madsen, Sanders, and Chambers, JJ., concur with C. Johnson, J.