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Edward T. KangEdward T. Kang ()

There seems to be a common misunderstanding about the proper way to use Rule of Evidence 408 relating to evidence of offers of compromise and settlement discussions. Let’s take the recent Bill Cosby criminal trial as an example. In March, Cosby moved to dismiss any evidence regarding any aspect of settlement of the civil action between him and Andrea Constand from 2006. He argued in part that evidence of the civil settlement was inadmissible under Pennsylvania Rule of Evidence 408. The court disagreed with that argument, however, reasoning that the settlement documents were relevant to show Cosby’s consciousness of guilt and efforts to obstruct the criminal investigation. The court ultimately did not allow the jury to hear any evidence of settlement of the civil suit. While the court neither issued an opinion nor provided any reasoning for its decision to exclude the evidence of civil action settlement, Cosby’s defense team had argued both that the exceptions to Rule 408 did not apply and that the evidence was unfairly prejudicial under Rule 403. Nevertheless, the court’s rejection of Cosby’s argument that evidence of settlement is inadmissible under Rule 408 demonstrates practitioners’ need to better understand the rule: Had the evidence of civil action settlement been admitted, the Cosby criminal trial might have had a different outcome. This rule has the potential to change the trajectory of a trial and greatly influence the jury.

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