Rule 408 Compromise, offers to compromise, and mediation proceedings. 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, or (3) mediation or attempts to mediate a claim which was disputed, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations or mediation proceedings 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 or mediation proceedings. 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. [L 1980, c 164, pt of 1; am L 1989, c 119, 1]

 

RULE 408 COMMENTARY

 

This rule is identical with Fed. R. Evid. 408. The rule has been accepted in Hawaii, see First Bank of Hilo v. Maguire, 25 H. 43, 49-50 (1919); HRCP 68.

 

RULE 408 SUPPLEMENTAL COMMENTARY

 

The Act 119, Session Laws 1989 amendment added paragraph (3) relating to mediation. The federal note does not specifically address mediation.

 

Case Notes

 

Based on record, no evidence that statements made in course of compromise negotiations. 67 H. 389, 688 P.2d 1145 (1984).

Trial court properly excluded evidence of insurer's settlement offer which court determined would be used to prove liability for or invalidity of the claim or its amount. 82 H. 120, 920 P.2d 334 (1996).

In a criminal trial, evidence of an accused's offer to pay value to a complainant in an attempt to avoid prosecution is not excludable under this rule. 92 H. 161, 988 P.2d 1153 (1999).

This rule applies in criminal proceedings. 92 H. 161, 988 P.2d 1153 (1999).

Testimony properly excluded where it concerned memo regarding settlement agreement. 5 H. App. 174, 683 P.2d 833 (1984).

By virtue of this rule, related compromises or attempts to compromise civil liability are not admissible in a criminal trial because of danger that the evidence may be taken as criminal guilt. 79 H. 265 (App.), 900 P.2d 1332 (1995).

Seller's offer to pay buyer $22,000 in exchange for buyer's cancellation of DROA was promise to pay a valuable consideration to compromise a claim disputed as to validity or amount and was thus not admissible to prove liability for, or invalidity of, buyer's claim against seller. 84 H. 162 (App.), 931 P.2d 604 (1997).

Mentioned: 129 H. 250 (App.), 297 P.3d 1106 (2013).

 

 

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