To Speak or Not to Speak? Navigating the Treacherous Waters of Parallel Investigations Following the Amendment of Federal Rule of Evidence 408

Abstract

In 2006, the Advisory Committee on Evidence Rules surprised many scholars when it amended Federal Rule of Evidence 408 concerning the admissibility of offers of compromise. Prior to its amendment, Rule 408 generally prohibited the admissibility of statements made during settlement talks when offered to prove or disprove liability. The newly amended Rule 408 creates an exception for statements made to government officials during settlement talks when the official is acting in a civil capacity.

The drafters of the new Rule 408 believe that statements made to private litigants during settlement talks deserve greater protection than statements made to government officials in the same context. More importantly, this new amendment creates an inconspicuous trap awaiting any person who is the subject of a civil investigation by a governmental body. Even where a defendant successfully settles a civil dispute with the government, any admissions of fault made during those settlement talks can become the basis for a later criminal proceeding.

This Article demonstrates that the drafters erred when they decided to hinge the admissibility of evidence upon the presence or non-presence of the government. It discusses the history of Rule 408 as well as the circuit split that precipitated amendment of the rule. It further addresses the many situations in which the government may act in both a criminal and civil capacity; and discusses the safeguards, if any, that protect an individual or corporation facing both criminal and civil liability at the hands of the government. It addresses whether a settlement communications privilege might provide adequate protection to defendants facing simultaneous civil and criminal liability and also proposes a solution that protects the rights of individuals who seek to cooperate with civil governmental investigations while allowing for the admissibility of relevant evidence. It concludes that without a reversal of the new rule, negotiations between government agencies and defendants will suffer. The only defendants who will be willing to engage in open and frank discussions with the government will be those defendants ignorant of the amendment who do not realize their exposure to criminal liability. If nothing else, the proposed warning places all parties on equal footing regarding the impact of their negotiations. Although the proposed warning leaves defendants without a safety net, it alerts them of the net's absence before they leap.

Keywords: Federal Rules of Evidence, Evidence, Rule 408, Offer of compromise, Admissibility, Admissions, Statements to government officials, Settlement communications privilege

JEL Classification: K10, K14, K40, K41