Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.
|CHAPTER II: CATEGORICAL RULES OF EVIDENCE|
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C. Pleas and Related Statements (150)
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 Insurance, 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 farther -- 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.
Not all jurisdictions feel that this option
is worth preserving. One state codifying its law on the basis of the federal
rules has deleted non-withdrawn nolo pleas from the pleas excluded under Rule
410. The arguments advanced in support of the admissibility of nolo pleas
in subsequent proceedings include:
1. For all purposes associated with conviction other than its effect in a subsequent proceeding, there is no difference between a nolo plea and a guilty plea. The same factual basis for nolo and guilty pleas is required. Therefore, there should be no difference between the two pleas in subsequent civil cases.
2. Historically, there is little difference between the use of guilty and nolo pleas. They are used interchangeably.
3. The prosecution and the defendant rarely consider the consequences of the later plea in a civil case in deciding on the form of the plea.
4. Nolo pleas seem to be used most commonly in criminal traffic cases. Fairness would call for their admissibility in civil cases arising out of the same event.
5. In those rare cases where it would be unfair to admit a nolo plea, the evidence can be excluded under Rule 403.
Despite these points, the federal rule excludes evidence of nolo pleas.
The primary problem under FRE 410 is distinguishing admissible confessions or admissions (see FRE 801(d)(2)) from statements immunized under FRE 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 a discussion 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.
FRE 410 excludes statements and conduct of a defendant made in order to obtain a favorable disposition of his case in certain very circumscribed situations. If exclusion depends on compliance with the formal requirements of the rules rather than the defendant's subjective expectations, many defendants will be unpleasantly surprised.
Answer and Analysis:
Under FRE 410 as originally enacted, the accused could claim, based on his prior experience and on the implied assumption that if he cooperated a plea to a reduced charge would probably be forthcoming, that his statements were made as part of a plea offer. However, under current Rule 410, as amended in 1979, the rule excludes only statements and conduct made in the course of a Rule 11 F.R. Crim. P. proceeding, or comparable state proceeding, or statements made in the course of plea discussions with an attorney for the prosecuting authority. Thus, these statements to the DEA agents would not be excluded by the rule.
In the case on which this problem is based, United States v. Levy. 578 F.2d 896 (2d Cir. 1978), the court held that D's offer to cooperate with the DEA in future investigations evidenced a consciousness of guilt and was relevant to prove the charge against him. The court also held that FRE 410 did not apply to the first incriminating statements made by D to A because they were not made during the course of formal plea bargaining, "but as part of an apparent effort by the defendant to help himself without pausing to request any consideration whatever from the prosecutor for his cooperation." The court held that, to come within FRE 410 or F.R. Crim. P. 11, defendant's offer to cooperate must in some way express the hope that a concession to reduce his punishment will be forthcoming. "A silent hope, if uncommunicated, gives the officer or prosecutor no chance to reject the confession he did not seek. A contrary rule would permit the accused to grant retrospectively to himself what is akin to a use immunity." At the very least, an accused must indicate his intention to seek a plea bargain before he takes the route of self-incrimination. The court did not reach the issue of whether or on what conditions admissions by an accused will be suppressed when they are part of a de facto plea bargaining process that does not rise to the Rule 11 level. The major factor influencing the court was that the DEA agents did not initiate the discussion but, rather, D volunteered to cooperate in the absence of any request that he do so.
The Levy court, distinguished the later statements made by D to Agent A after D had met with the Assistant U.S. Attorney to discuss the possibility of cooperation. The court thought it likely that admissions that occurred after that point in time were made in an attempt to induce a plea bargain. Without deciding whether Rule 11 applied to the statement, the court held that any error in admitting such statements was harmless.
In contrast, in United States v. Herman, 544 F.2d 791 (5th Cir. 1977), a case decided under the original version of FRE 410, the court held that any statements made by a defendant as part of an effort to reach a plea agreement must be excluded, and it makes no difference that defendant's efforts are misguided because the official to whom he makes the offer has no authority to accept it. However, when the defendant knows that the people to whom he is speaking cannot negotiate a plea and when they have not told him that they will communicate his statements to someone who does have negotiating authority, the defendant's statements are not plea related and are not protected by Rule 410.
In Herman defendant was accused of robbing a post office and killing a postal employee. In the courthouse during a recess in his removal hearing, Herman made certain incriminating statements to two postal inspectors during what the defendant claimed were plea negotiations. The government argued that the statements were not made in connection with plea discussions and therefore were admissible. Defendant offered to plead guilty to robbery charges and produce the murder weapon if the authorities would agree to drop the murder charges. The postal inspectors testified that in response to the defendant's plea offer, they told him they were not in "position" to make any deals. In excluding the statements, the court held that the rule should not be used to seduce confessions or admissions. Since the defendant explicitly sought to have the government drop the murder charges in return for a guilty plea to robbery, the court felt that Rule 410, and Rule 11 F.R. Crim. P., as then existing, required exclusion. The court held, "[t]he relevant factor is a defendant's perception of the government official's negotiating authority, not the official's actual authority. The twin goals of encouraging unrestrained plea negotiations and assuring fairness to defendants dictate that any statements made by a defendant as part of an effort to reach a plea agreement must be excluded; it makes no difference that the defendant's efforts are misguided because the official cannot or will not accept the offer."
The formalistic approach of Levy and current FRE 410 is unrealistic. As the Herman court stated, it is unreasonable to expect a defendant to carry with him an almanac listing the officials in each jurisdiction who have authority to negotiate a plea. Similarly, it is unreasonable to expect defendants to understand when they are in a Rule 11 plea bargaining situation or negotiating with an attorney for the prosecuting authority. Plea bargaining is officially encouraged. Defendants are aware of this. Officials should not be allowed to use this fact to deceive defendants and create evidence that the prosecution otherwise would not have.
FRE 410 does not, in terms, exclude evidence offered by the defendant against the government to prove the weakness of the prosecution's case. However, such evidence could be excluded under FRE 403.
Answer and Analysis:
FRE 410 excludes evidence of statements made in connection with plea discussions only when offered against the defendant. This is underscored by the Advisory Committee's Note, which states, "[l]imiting the exclusionary rule to use against the accused is consistent with the purpose of the rule, since the possibility of use for or against other persons will not impair the effectiveness of withdrawing pleas or the freedom of discussion which the rule is designed to foster."
In United States v. Verdoon, 528 F.2d 103 (8th Cir. 1976), the case on which this is based, the court held that the trial court correctly excluded defendant's attempt to admit evidence that he and the other co-defendants were offered possible reduced counts and lighter sentences in exchange for their testimony. Defendant's theory was that this evidence challenged the credibility of the government's entire case by showing the lengths to which the government went in attempting to obtain crucial testimony. The court noted that plea bargaining is sanctioned by the Federal Rules of Criminal Procedure and that F.R. Crim. P.11(e)(6), provides for the general inadmissibility of offers to plea and related statements. However, the court did not exclude the evidence under this rule, nor under FRE 410. Rather, the court stated, "[u]nder the rationale of Fed. R. Evid. 408, which relates to the general inadmissibility of compromises and offers to compromise, government proposals concerning pleas should be excludable."
The court's reliance on 408 is bizarre. Rule 410 clearly covers plea bargaining in criminal cases; Rule 408 covers settlement offers in civil cases. Basing its ruling on FRE 408 to avoid the language of FRE 410 violates basic notions of statutory construction. If the court believed that the evidence of the government's willingness to engage in plea negotiations should have been excluded, it could have done so under Rule 403 on the grounds that such evidence would confuse the issues or mislead the jury. The sounder approach, however, would have been to follow FRE 410 and permit defendant to offer this evidence for whatever it was worth, with explanatory evidence, if desired, offered by the government for the jury to weigh.
This case addresses whether the provisions Rule 410 of the Federal Rules of Evidence can be "waived" by the criminal defendant at the instance of the government as a condition precedent to plea negotiations. The majority opinion treats the provisions of the rule like a personal procedural rights which is subject to waiver by the defendant. The dissent points out that the Rules of Evidence reflect Congress' s judgment on what should be used as the basis of proof in the courts. Allowing "waivers" under circumstances similar to those in Mezzonato , and that individual defendants cannot "waive" those policy judgments in advance of the trial.
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