[Rule 409.5] Admissibility of expressions of sympathy and condolence. Evidence of statements or gestures that express sympathy, commiseration, or condolence concerning the consequences of an event in which the declarant was a participant is not admissible to prove liability for any claim growing out of the event. This rule does not require the exclusion of an apology or other statement that acknowledges or implies fault even though contained in, or part of, any statement or gesture excludable under this rule. [L 2007, c 88, §1]
RULE 409.5 COMMENTARY
This rule, shielding expressions of "sympathy, commiseration, or condolence", resembles measures recently adopted in several sister states. See, e.g., CA Evid. Code §1160, excluding expressions of "sympathy or a general sense of benevolence". The rule favors expressions of sympathy as embodying desirable social interactions and contributing to civil settlements, and the evidentiary exclusion recognizes that the law should "facilitate or, at least, not hinder the possibility of this healing ritual". Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 Mich. L. Rev. 460, 474 (2003). The Hawaii legislature also stated: "Your committee finds it appropriate to allow individuals and entities to express sympathy and condolence without the expression being used ... to establish civil liability". Senate Standing Committee Report No. 1131, March 21, 2007.
Whether a challenged utterance amounts to an expression of sympathy or an acknowledgment of fault will be entrusted to the sound discretion of the trial court under Rule 104(a). In making this determination, the court could consider factors such as the declarant's language, the declarant's physical and emotional condition, and the context and circumstances in which the utterance was made.
Although trial court erred in concluding that the admissibility of petitioner's statement regarding having "made a big mistake" was governed by this rule, and also erred by excluding the preceding words "I'm so sorry", because those words explained the context of the "mistake" comment, the error was harmless beyond a reasonable doubt in light of petitioner's testimony explaining the statement, and the statement was relevant and admissible as a party admission under rule 803(a)(1). 126 H. 460, 272 P.3d 1227 (2012).
This rule, which provides that evidence "expressing sympathy, commiseration, or condolences concerning the consequences of an event in which the declarant was a participant is not admissible to prove liability for any claim", applies in civil but not criminal cases; thus the circuit court and appellate court erred in applying this rule in this criminal case. 126 H. 460, 272 P.3d 1227 (2012).