Alaska Comm. R. Evid. 408
This rule, like the common law doctrine, operates to exclude evidence of an offer to compromise a claim when offered to prove the validity, invalidity or amount of the claim. Under the prevailing common law view, statements of fact made independently of the compromise offer--i.e., statement not inextricably bound up in the offer to compromise--can be admitted for any relevant purpose. But this exception can be artfully dodged by the attorney who specifies that all factual statements are hypothetical, or who states in advance that the discussion is "without prejudice." See Annot., 15 A.L.R. 3d 13 (1967). See also Alaska R. Civ. P. 43(i) (2) (superseded by this rule).
This rule expands the scope of protection afforded compromise negotiations by eliminating the common law exception and making statements of fact and conduct which are made or which occur during settlement negotiations inadmissible whenever an offer to compromise would be excluded. See California Evidence Code §§ 1152, 1154 for similar provisions. In addition to eliminating the need to talk continually in hypothetical terms, this change promotes the major policy behind the rule--to encourage settlement of disputes. It also avoids preliminary factfinding as to what was said during negotiating sessions, i.e., whether statements were made in hypothetical or "without prejudice" form.
The Advisory Committee's comment to the Federal Rule after which this rule is modeled cites two rationales for a rule of exclusion.
Unless the amount of the claim or the claim itself is in dispute, the policy of encouraging freedom of communication with respect to compromise is not advanced. Hence the rule does not apply when the effort is to induce a creditor to settle an admittedly due amount for a lesser sum. McCormick (2d ed.) § 274, at 663. See also Uniform Rules 52 and 53 for similar provisions. An offer to pay the full amount in dispute is admissible as an unconditional acknowledgment of liability because it is not conditioned on a compromise. See Saxton v. Harris, 395 P.2d 71 (Alaska 1964).
This Rule governs whether or not any compromise that is reached is carried out. Some common law jurisdictions admit completed settlements as evidence if they are not successful in terminating litigation. Nothing in this rule prevents the use as evidence of settlement agreements in subsequent contract actions, however.
This rule differs from the federal rule by explicitly providing that statements made during negotiations must not be used for impeachment as prior inconsistent statements of a party. This further protection is required in order to encourage free and open negotiations and to foster settlements. It may be necessary to "concede" issues to an opponent to advance negotiations which are not issues that one would readily concede for purposes of proving liability. If impeachment is allowed, the common law requirement of communicating in hypothetical terms would, for all practical purposes, be reinstated. Unless the parties to the negotiation are insured that they will not prejudice the merits of their respective cases, communications will be guarded. As recognized in Rule 410, admissibility of guilty pleas later withdrawn or offers to plead guilty for purposes of impeachment would effectively stifle the open communication needed to promote compromise. The same is true in civil cases.
Where statements made in compromise negotiations are not used to advance litigation relating to the validity, invalidity or amount of the underlying claim admission is proper. Collateral uses such as those mentioned in the final sentence of the rule are supported by existing authorities. E.g., proving bias or prejudice of a witness, see Annot., 161 A.L.R. 395 (1946); negativing a contention of lack of due diligence in presenting a claim, 4 Wigmore § 1061. See also Alaska R. Civ. P. 68 in which evidence of an unaccepted offer of judgment is admissible on the collateral issue of determining costs. An effort to "buy off" the prosecution or a prosecuting witness in a criminal case is not within the policy of the rule of exclusion.
This rule further provides that evidence which would otherwise be discoverable is not rendered inadmissible merely because it was presented during negotiations. A party should not be able to immunize documents by once revealing them; no policy is advanced by such protection. Where statements made during negotiations lead to the discovery of relevant evidence it shall not be rendered inadmissible merely because the information obtained could not have been introduced into evidence in the form of statements made during negotiations.
Alaska Comm. R. Evid. 408