§ 16.03 NOLO CONTENDERE PLEAS

• Jurisdiction: North Carolina

§ 16.03. NOLO CONTENDERE PLEAS

Evidence of a nolo contendere plea (and related statements) is inadmissible under Rule 410(a)(2) if offered against the defendant who made the plea. Criminal Rule 11(a) permits an accused to plead nolo contendere. The exclusion of evidence of no-contest pleas is necessary to preserve the distinction between no contest and guilty pleas.⁸ Stated another way: The only purpose of a nolo plea is to preclude its subsequent use in civil cases. In all other respects, a guilty plea and a no-contest plea are alike; a person can be sentenced and imprisoned based on a no contest plea.

Why have no-contest pleas? Assume parallel criminal and civil litigation — e.g., a car accident. In a jurisdiction without a no-contest plea, a defendant might contest a criminal charge for reckless driving only because the guilty plea would be admissible in subsequent civil litigation involving personal injury and property damage.⁹ The same rationale applies (big time) in criminal antitrust prosecutions, which may be followed by treble damage civil suits. The notion underlying no-contest pleas is that society does not want scarce prosecutorial resources expended in cases where the defendant does not want to contest the criminal charge. Nevertheless, court approval of a nolo plea is required in the federal system.¹⁰

Although Rule 410 precludes the admission of no-contest pleas, it does not preclude use of a judgment of conviction based on that plea. Rather, Rule 803(22) makes such a judgment inadmissible if offered in a civil case.¹¹ However, the use of a conviction based on a no-contest plea for impeachment under Rule 609 is not prohibited by either rule.¹²

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Notes:

^[8] Eed. R. Evid. 410 advisory committee's note (Rule 410 "gives effect to the principal traditional characteristic of the no contest plea, i.e., avoiding the admission of guilt which is inherent in pleas of guilty."). See also Lipsky v. Commonwealth United Corp., 551 E.2d 887 (2d Cir. 1976) (consent judgment considered the equivalent of a nolo plea).

^[9] Because of speedy trial statutes, the...