Proposed Court Rules

The Washington Supreme Court is considering a number of proposed court rules. Comments are due by April 30. Proposals include these two Evidence Rules:

• ER 408. COMPROMISE AND OFFERS TO COMPROMISE

  Submitted by the Board of Governors of the Washington State Bar Association

  Purpose: In 2005, the Supreme Court held that evidence of negotiations or compromise between a criminal defendant and a victim in efforts to compromise a potential civil claim is admissible in the criminal trial of the defendant, on grounds that ER 408 does not apply in criminal trials. See State v. O’Connor, 155 Wn.2d 335, 119 P.3d 806 (2005). The intent of this suggested amendment is to codify the O’Connor decision. A companion amendment to ER 410 also responds to the O’Connor decision.

• ER 410. INADMISSIBILITY OF PLEAS, OFFERS OF PLEAS, AND RELATED STATMENTS

  Submitted by the Board of Governors of the Washington State Bar Association

  Purpose: In 2005, the Supreme Court held that evidence of negotiations or compromise between a criminal defendant and a victim in efforts to compromise a potential civil claim is admissible in the criminal trial of the defendant, on grounds that ER 408 does not apply in criminal trials. See State v. O’Connor, 155 Wn.2d 335, 119 P.3d 806 (2005). The Court reasoned that the policy favoring civil settlements reflected in ER 408, although sufficient in a civil case to bar evidence relating to settlements and offers to settle, is insufficient in criminal cases. A companion amendment to ER 408 is intended to codify the O’Connor decision by expressly limiting ER 408 to civil cases.

  Under RCW Chapter 10.22, if a defendant is prosecuted for a misdemeanor and the victim also has a civil remedy, the criminal prosecution may be compromised, subject to certain exceptions. RCW 10.22.010-.020. If the victim shows the court that he or she has received satisfaction for the injury, the court, in its discretion, may dismiss the charges. RCW 10.22.020. The Legislature has also created a civil action and civil penalties for criminal conversion of goods or merchandise or for not paying restaurant or hotel bills. See RCW 4.24.230. In these instances, the policy favoring civil settlements is heightened despite the possibility of a related criminal prosecution.

  ER 410 makes evidence of criminal plea negotiations inadmissible in both civil and criminal trials. The suggested amendment would add a new paragraph (b) to the rule, intended to render evidence of civil negotiations or compromise pursuant to these statutes inadmissible in civil or criminal proceedings.