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35 Ariz. St. L.J. 1437 (2003)
The Limits of Rule 408 after Hernandez

handle is hein.journals/arzjl35 and id is 1449 raw text is: NOTE THE LIMITS OF RULE 408 AFTER HERNANDEZ* Keith A. Swishert In a three-to-two decision,' the Arizona Supreme Court recently ruled that facts set out in an offer to compromise may be admitted to impeach a party testifying,2 notwithstanding Rule 408 of the Arizona Rules of Evidence,3 which prohibits the use of offers to compromise and statements made in settlement negotiations for the purposes of proving liability for, or invalidity of, a disputed claim or its amount.4 Nothing in the majority's opinion, however, limited the ruling's coverage to merely factual statements made in offers to compromise. The ruling, therefore, will apply to offers of compromise themselves, statements, and conduct in settlement negotiations. While an impeachment use does not appear contrary to Rule 408 on its * Hernandez v. State, 52 P.3d 765 (Ariz. 2002). t J.D. Candidate, 2004, Arizona State University. The author wishes to thank Professor Robert Bartels for his guidance. 1. Justice Ruth McGregor, writing for the majority, was joined by Chief Justice Charles Jones and Justice Rebecca White Berch. Judge Joseph Howard from the Court of Appeals of Arizona was designated to sit on the case. He wrote the dissenting opinion, joined by Justice Stanley Feldman. Hernandez, 52 P.3d at 769 n.*. 2. Hernandez, 52 P.3d at 766. 3. ARIZ. R. EVID. 408. Rule 408 states: Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Rule 408 was adopted verbatim from its federal counterpart-Rule 408 of the Federal Rules of Evidence. The Historical Notes to Rule 408 of the Arizona Rules of Evidence adopt the advisory committee notes to the federal rule. See State v. Green, 29 P.3d 271, 273 (Ariz. 2001) (noting that when the Arizona rule is predominantly echoes the federal rule, Arizona courts often look to the federal rule for guidance in interpretation). Thus, for simplicity, the rest of the article treats the advisory committee's note and the Arizona rule itself interchangeably with the federal rule and the federal advisory committee's note. 4. ARIZ. R. EVID. 408.

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