§ 16.07 EXCEPTIONS

• Jurisdiction: North Carolina

§ 16.07. EXCEPTIONS

There are two explicit exceptions in Rule 410, which are discussed below. Courts have read in others. For example, the rule does not apply if the defendant files a civil suit (e.g., against the police²⁹ or his former criminal defense lawyer)³⁰ because, in the view of several courts, Rule 410 is a defensive, not an offensive, provision.

[A] Rule of Completeness

Rule 410(b)(1) recognizes an exception in "any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness, the statements ought to be considered together."³¹ This provision is comparable to Rule 106, which codifies the "rule of completeness."³²

[B] Perjury and False Statement Prosecutions

Rule 410(b)(2) recognizes an exception for perjury and false statement prosecutions. In such cases, Rule 410 statements are admissible if they were made under oath, on the record, and in the presence of counsel. The Senate Judiciary Committee added this exception because without it "a defendant would be able to contradict his previous statements and thereby lie with impunity. To prevent such an injustice, the rule has been modified to permit the use of such statements in subsequent perjury or false statement prosecutions."³³

[C] Impeachment

There is no impeachment exception to Rule 410.³⁴ Any doubt is removed when the rule's legislative history is considered. As enacted in 1975, Rule 410 contained an impeachment exception.³⁵ However, when the rule was subsequently amended later that year,³⁶ Congress deleted that exception.

Note, however, that an accused may waive the protections of the rule, and thereby subject himself to impeachment. Waiver is discussed in the next section. Furthermore, Rule 410 does not apply to statements made in connection with a guilty plea that is not withdrawn; thus, such statements are admissible for impeachment as well as substantively.³⁷

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Notes:

^[29] See Walker v. Schaeffer, 854 F.2d 138, 143 (6th Cir. 1988) ("Rule 410 was intended to protect a criminal defendant's use of the nolo contendere plea to defend himself from future civil liability. We decline to interpret the rule so as to allow the former defendants to use the plea offensively, in order to obtain damages, after having admitted facts which would indicate no civil liability on the part of the [defendant] police.").

^[30] See Brown v. Theos, 550 S.E.2d 304, 307 n. 2 (S.C. 2001) (malpractice action against criminal defense attorneys; "Brown as a...