[Rule 409.5]  Admissibility of expressions
of sympathy and condolence.  Evidence of statements or gestures that
express sympathy, commiseration, or condolence concerning the consequences of
an event in which the declarant was a participant is not admissible to prove
liability for any claim growing out of the event.  This rule does not require
the exclusion of an apology or other statement that acknowledges or implies
fault even though contained in, or part of, any statement or gesture excludable
under this rule. [L 2007, c 88, §1]



 



RULE 409.5 COMMENTARY



 



  This rule, shielding expressions of "sympathy,
commiseration, or condolence," resembles measures recently adopted in
several sister states.  See, e.g., CA Evid. Code § 1160, excluding expressions
of "sympathy or a general sense of benevolence."  The rule favors
expressions of sympathy as embodying desirable social interactions and
contributing to civil settlements, and the evidentiary exclusion recognizes
that the law should "facilitate or, at least, not hinder the possibility
of this healing ritual."  Robbennolt, Apologies and Legal Settlement:  An
Empirical Examination, 102 Mich. L. Rev. 460, 474 (2003).  The Hawaii legislature also stated:  "Your committee finds it appropriate to allow
individuals and entities to express sympathy and condolence without the
expression being used ... to establish civil liability".  Senate Standing
Committee Report No. 1131, March 21, 2007.



  Whether a challenged utterance amounts to an expression of
sympathy or an acknowledgment of fault will be entrusted to the sound
discretion of the trial court under rule 104(a).  In making this determination,
the court could consider factors such as the declarant's language, the
declarant's physical and emotional condition, and the context and circumstances
in which the utterance was made.