Evidence

Several amendments to the Federal Rules of Evidence became effective December 1, 2006. Rule 404, which governs the use of character evidence offered to prove conduct, has been amended to clarify that character evidence is generally not admissible in civil cases. Apparently at the behest of the Criminal Division of the Department of Justice, Rule 408, which addresses the admissibility of evidence of conduct and statements made in settlement negotiations, has been amended to expand the use of settlement evidence in criminal cases. This change will be particularly relevant to Eleventh Circuit criminal law practitioners in light of the court's decision in United States v. Arias, which was discussed in last year's survey.

The logic of the proposed amendment is questionable. First, statements made during settlement discussions, accompanied as they often are by puffing and grandstanding, are dubious evidence of fault. It is reasonable to question why those statements would be more probative in a criminal case than in a civil case. Second, the amendment to Rule 408 runs counter to Rule 408's effort to further public policy favoring compromise.