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74. Is the driver's statement to the woman admissible in the subsequent criminal prosecution?
Subsequently, the driver was charged with reckless homicide of the husband. At the driver's criminal trial, the prosecutor offered, as evidence of the driver's guilt, the driver's statement to the woman during settlement negotiations.
A woman brought a wrongful death action against a car driver who hit and killed her husband while her husband was crossing a street. In settlement negotiations, the driver told the woman that he was sorry for what had happened and that he had been too drunk to drive when he ran into her husband with his car. The woman and the driver settled the wrongful death action for $1 million.
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A is incorrect. When offered by the prosecution, the driver's statement to the woman is a statement of an opposing party and would fall under the exception to the hearsay rule set out in FRE 801(d)(2)(A). However, because the statement was made in civil settlement negotiations between the private parties, it cannot be admitted to prove the validity of the claim in the subsequent criminal case.
C is incorrect. FRE 408(a)(2) distinguishes between settlement negotiations involving private parties and those involving a public office. Statements made in negotiations related to a claim by a public office in the exercise of its enforcement authority may be admissible in a subsequent criminal prosecution, while statements made in negotiations with a private party are not admissible in a subsequent criminal prosecution.
D is incorrect. The statement is inadmissible under FRE 408(b)(2). FRE 403's balancing test has no role in the analysis. Moreover, the balancing test is improperly stated in the answer.