§ 16.05 Plea Discussions

• Jurisdiction: United States

§ 16.05 Plea Discussions

In some jurisdictions, up to 90% of the criminal cases are resolved by guilty pleas, most often as a result of plea bargaining. Under Rule 410(a)(4), plea bargaining statements involving a prosecutor are inadmissible. The policy that supports this exclusion is similar to the one underlying Rule 408, which governs compromise offers in civil cases: exclusion promotes the public policy of favoring the settlement of disputes.¹⁴Criminal Rule 11(f) recognizes that policy, and the Supreme Court has noted that "the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system."¹⁵

Determining when negotiations begin and end is important because Rule 410 does not apply before negotiations have commenced or after they have terminated.¹⁶

[A] Statements to Police

Several federal courts once read the original version of Rule 410 broadly to cover some "plea bargain" statements made during discussions between defendants and the police.¹⁷ The rule was amended (1980) and is now limited to statements made "during plea discussions with an attorney for the prosecuting authority."¹⁸ Only if the police are acting as the prosecutor's agents does the rule apply.¹⁹

A defendant's statements to the police, of course, must satisfy constitutional standards, such as the due process voluntariness test, the Miranda safeguards, and the Sixth Amendment right to counsel.²⁰

[B] Broken Agreements

Since the policies supporting plea bargaining are undercut when a party reneges on the agreement, Rule 410 does not apply when a plea agreement is broken. In United States v. Stirling,²¹ the defendant entered into a written agreement with the prosecution, under which he would plead guilty and testify for the prosecution before the grand jury and at the trial of other defendants. After testifying before the grand jury, the defendant refused to perform his part of the agreement at trial and pled not guilty. The Second Circuit upheld the admission of his grand jury testimony at his own trial. The agreement specifically provided for use of information supplied by the defendant in the event he reneged on the agreement. The same result was reached in United States v. Davis,²²even though the agreement was silent on this issue.²³

[C] Offered Against Prosecution

Rule 410, on its face, excludes evidence of offers to plead guilty or nolo contendere only when offered against the defendant who made the plea or offer. It does not...