Rule Impacts Report

Evidence

RULE WILL AFFECT SUMMARY AND IMPACT

Rule 408

R-08-0035

Contact:
Mark Meltzer

Superior Courts
Justice Courts
Municipal Courts

Judges

Rule 408 concerns evidence of compromise and offers to compromise.

This amendment supersedes this Court’s ruling in Hernandez v. State, 203 Ariz. 196, 52 P.3d 765 (2002). Under the amendments, evidence of an offer or acceptance of a compromise, or evidence of conduct or statements made during compromise negotiations, is inadmissible on behalf of any party to prove liability for, the invalidity of, or the amount of a claim, or to impeach through a prior inconsistent statement or contradiction.

The amendment does not require exclusion of this evidence if it is offered for a permissible purpose, such as proving bias of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation.

Impact:

The amended rule could impact a judge’s rulings on objections to evidence.


Rule 502

R-09-0004

Contact:
Mark Meltzer

Superior Courts
Justice Courts
Municipal Courts

Judges

This is a new rule of evidence. It is modeled after Rule 502 of the Federal Rules of Evidence, and it is designed to resolve disputes concerning inadvertent and voluntary disclosures.

Rule 502 applies to disclosures of communication or information covered by the attorney-client privilege or work product protection. The rule among other things:

  • Describes the scope of a waiver made in an Arizona proceeding;

  • Describes the effect of an inadvertent disclosure;

  • Describes the effect of a disclosure made in a proceeding in federal court or in another state.

Impact:

This rule should reduce the number of discovery issues that require court intervention, and assist the court in deciding discovery disputes that are presented to the court. This rule may have particular application to disclosure of electronic information which may be produced in large volumes, including e-mail communications and electronically managed documents.


Rule 703 and 705

R-08-0036

Contact:
Mark Meltzer

Superior Courts
Justice Courts
Municipal Courts

Judges

These rules concern expert opinion.

  • Facts or data upon which the expert has relied that are otherwise inadmissible shall not be disclosed to the jury unless the court determines that its probative value in assisting the jury substantially outweighs its prejudicial effect.

  • An expert may give testimony in terms of opinions and inferences without first testifying to the underlying facts or data, unless the court requires otherwise.

Impact:

A judge may receive objections to the factual basis of an expert’s opinion, and whether the opinion is based on inadmissible evidence.


Rule 804(b)(6)

R-09-0009

Contact:
Mark Meltzer

Superior Courts
Justice Courts
Municipal Courts

Judges

A new hearsay exception has been added to Rule 804(b), which allows the admission of evidence when the declarant is unavailable as a witness.

This new exception is sub-titled “forfeiture by wrongdoing”, i.e., the defendant has forfeited the right to confront the witness by the defendant’s own wrongdoing.

Impact:

A judge is not required to exclude a statement when it is offered against a party who has engaged or acquiesced in wrongdoing that was intended to and did procure the unavailability of the declarant as a witness.