Is Turnabout Fair Play?


D is charged with the sale of a controlled substance--heroin. At trial, D calls W, who was formerly the Assistant United States Attorney in charge of the case but is now in private practice. Through W, D's attorney seeks to show that W offered D the opportunity to plead to possession, rather than sale, in exchange for D's testimony against others. The prosecution objects. What ruling and why?


A criminal conviction based on a jury verdict may have collateral estoppel effect if offered against the defendant in a subsequent civil action. A guilty plea, however, constitutes only an admission and is not conclusive. The distinction between these situations is that the guilty plea does not result in a full adversarial presentation of the issues in the case. It may reflect only a compromise, such as to pay a fine rather than to litigate. Thus, fairness to civil litigants and the policy favoring expeditious administration of criminal justice combine in most jurisdictions to prohibit the application of collateral estoppel to guilty pleas. See Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal. 2d 601, 25 Cal. Rptr. 559, 375 P.2d 439, cert. denied, 372 U.S. 966 (1962).

Pleas of nolo contendere go one step further--they are not even admissible. Rule 410(2). This is a long-standing rule. See FDIC v. Cloonan, 165 Kan. 68, 193 P.2d 656 (1948). The policy behind this exclusion is to provide an option whereby all the effects of a criminal conviction may be obtained but the pleading party may avoid an admission of guilt that can be used against him in a subsequent case.

The primary problem under Rule 410 is distinguishing admissible confessions or admissions (see Rule 801(d)(2)) from statements immunized under Rule 410. This problem was even more acute under the initial version of Rule 410, which was not tied to F.R. Crim. P. 11 nor limited to statements made in the course of plea discussions with an attorney for the prosecuting authority. Rule 410 was amended in 1979 to limit its application to these situations.

Under the current rule, one still must decide when statements or conduct by the defendant or the government official suffice to justify characterizing discussions as "plea discussions." Also, there is a pervasive relevancy question. In looking at evidence of statements arguably covered by the rule, one must be careful to understand the purposes for which plea-bargaining statements are offered, keeping in mind the realities of the plea-bargaining process.

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