Deal or no deal: why courts should allow defendants to present evidence that they rejected favorable plea bargains.

• Author: Miller, Colin
• Position: New Hampshire

1. INTRODUCTION

   Robert Woodsum was charged with two counts of felonious sexual assault and faced up to fourteen years incarceration if found guilty of both counts. (1) Woodsum entered into plea negotiations with the prosecutor, who offered a deal under which Woodsum would plead guilty to two misdemeanor charges of simple assault in exchange for a recommendation from the prosecutor to the judge that Woodsum receive a two-year sentence that would be deferred, contingent on Woodsum's good behavior and pursuit of counseling. (2) Woodsum, however, rejected this plea bargain, which the State later characterized as "extraordinarily beneficial" to him. (3) When his case proceeded to trial, Woodsum sought to admit evidence that he turned down this plea bargain, claiming that his rejection of such an "extraordinarily beneficial" deal and willingness to risk fourteen years incarceration is evidence of his consciousness of innocence. (4) The trial court rebuffed his attempt, and Woodsum was convicted of both counts. (5)

   Woodsum's ensuing appeal eventually reached the Supreme Court of New Hampshire in State v. Woodsum. (6) One of Woodsum's arguments was that evidence of the prosecutor's offer and his rejection was not precluded under New Hampshire Rule of Evidence 410, which, like Federal Rule of Evidence 410, merely deems inadmissible statements made during plea discussions when offered "against the defendant who made the plea or was a participant in the plea discussions." (7) Woodsum also repeated his argument that his rejection of the plea deal evinced his innocent state of mind, and he claimed that the State can avoid the admission of such evidence in the future by having defendants "sign waivers of any right to introduce rejected, highly beneficial plea offers as evidence." (8) The State countered that, if the court accepted Woodsum's argument, "competent prosecutors [would] simply require such waivers in all cases, thus adding a new layer of paperwork to the process and undoubtedly expanding pretrial litigation whenever such a waiver was not obtained." (9)

   The Supreme Court of New Hampshire affirmed, finding, inter alia, that Rule 410 does not provide "express authority for the admission of the rejection of a plea offer." (10) Furthermore, the court found that "[m]any inferences follow from a defendant's decision to exercise his or her right to a jury trial, rather than to accept a plea offer[,]" but it only listed two: (1) the defendant may prefer the possibility of acquittal to the certainty of punishment after a guilty plea, or (2) the defendant may truly believe that he did not commit the crime charged, it The court seemed to find the former option likelier, concluding that "[a]n 'extraordinarily beneficial' plea offer is especially likely to induce a defendant to risk a trial, regardless of his or her guilt or innocence, for the offer of a beneficial plea may indicate that there are problems with the State's case...." (12)

   The court did give the latter option some credence, noting that "[i]t is also plausible to infer from the rejection of a beneficial plea offer ... that a defendant believes he or she did not commit the crime." (13) But, according to the court, "[t]his belief is ... only marginally relevant to the issues in any criminal trial." (14) Furthermore, "[s]et against the marginal relevance ... is the great likelihood that its admission will draw extraneous, misleading information into a criminal trial ... inevitably invit[ing] an exploration of such collateral matters as the prosecutor's reasons for making the offer ... or the defendant's motives for rejecting it." (15)

   Any other court in this country almost certainly would have reached the same conclusion. In its 1991 opinion in State v. Pearson, the Court of Appeals of Utah precluded a defendant from presenting evidence that he rejected a favorable plea bargain, in the process noting that it had "found no appellate decisions which have reached a contrary result, given the narrow issue before us." (16) Moreover, no court since 1991 appears to have permitted this type of evidence. (17)

   Courts thus have categorically concluded that despite the fact that Federal Rule of Evidence 410 and state counterparts merely provide that statements made during plea discussions are inadmissible "against the defendant," such statements are also inadmissible "against the prosecution." In reality, however, a criminal defendant is rarely able to invoke the evidentiary rules to prevent the prosecution from admitting his incriminatory statements made during plea discussions as substantive evidence of his guilt at trial, if a plea deal is not reached. As an example, consider the case of Roger Rebbe.

   Roger Rebbe, an accountant, was suspected of preparing false tax returns. (18) He and his attorney met with government agents, who informed them that they would not engage in plea discussions unless both Rebbe and his attorney signed a waiver. (19) That waiver provided that if the sides did not reach a plea agreement,

   the government may use statements made by you or your client at the meeting and all evidence obtained directly or indirectly from those statements for the purposes of cross-examination should your client testify, or to rebut any evidence, argument or representations offered by or on behalf of your client in connection with the trial. (20) Rebbe and his attorney signed the waiver, Rebbe made incriminatory statements, i.e., "proffer statements," during plea discussions, and the discussions did not result in a plea agreement. (21) The government subsequently informed Rebbe of its intent to introduce his incriminatory statements at trial consistent with the terms of the waiver. (22) Rebbe moved to exclude these statements, but the district court denied his motion, finding that his statements would be "admissible to rebut any evidence or arguments he made at trial that were inconsistent with his proffer statements." (23)

   After the government rested its case, Rebbe requested an advisory opinion "as to whether the admissibility of [his] proffer statements had been triggered." (24) The district court refused to rule on the issue, and Rebbe decided to hedge his bets by presenting four defense witnesses but not testifying on his own behalf. (25) The gamble, though, did not pay off; instead, at the close of the defendant's case, the government successfully moved for the admission of Rebbe's statements as substantive evidence of Rebbe's guilt. (26) On Rebbe's ensuing appeal, in United States v. Rebbe, the Ninth Circuit affirmed, concluding that Rebbe presented a defense that was inconsistent with his proffer statements when his attorney elicited certain testimony inconsistent with the proffer from defense witnesses during direct examination and prosecution witnesses during cross-examination. (27)

   In reaching this conclusion, the Ninth Circuit relied upon the opinion of the United States Supreme Court in United States v. Mezzanatto. (28) In Mezzanatto, the Supreme Court found that a prosecutor can force a criminal defendant to waive the protections of Federal Rule of Evidence 410 and its counterpart, Federal Rule of Criminal Procedure 11(e)(6), by having him sign an "impeachment waiver" indicating that if a plea deal is not reached and the defendant testifies at trial, the prosecutor can impeach him with his contradictory statements made during plea discussions. (29)

   The Court in Mezzanatto did not answer the question addressed in Rebbe: whether the prosecution can force a criminal defendant to waive the protections of Rule 410 by having him sign a waiver indicating that if a plea deal is not reached, the prosecutor can substantively use statements made during plea discussions that contradict any evidence, arguments, or representations offered by the defense at trial. That said, every court addressing a challenge to a "rebuttal waiver" like Rebbe's (30) has relied upon Mezzanatto to find the waiver constitutional. (31) Moreover, each of the three federal appellate courts that have addressed the constitutionality of a waiver allowing the prosecution to use a defendant's statements made during plea discussions substantively as part of its case-in-chief--a case-in-chief waiver--has relied upon Mezzanatto to reach the same result. (32)

   This Article explores this inconsistency--that courts permit prosecutors to present defendants' incriminatory statements made during plea discussions while precluding those same defendants from presenting evidence that they rejected favorable plea bargains--and questions whether this practice is permissible. It concludes that courts cannot prevent defendants from presenting evidence that they rejected favorable plea bargains based upon Mezzanatto and that none of the arguments against admissibility hold water.

   This Article proceeds in five parts. Following this Introduction, Section II details the creation and amendment of Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6). It pays particular attention to the 1979 amendment to the Rules, which made clear that defendants are not precluded from introducing into evidence exculpatory statements made during plea discussions. Section HI focuses upon opinions dealing with evidence of rejected plea bargains and the various and sundry reasons given by courts for excluding them. As a counterpoint, it notes that courts consistently have found that defendants can present evidence that they rejected prosecutorial offers of immunity but have refused to extend this logic to evidence of rejected plea bargains. Section IV deals with Mezzanatto and the way in which its progeny has extended its reasoning regarding impeachment waivers to allow for rebuttal and case-in-chief waivers. Finally, Section V argues that the Supreme Court's logic in Mezzanatto compels the conclusion that evidence that defendants rejected favorable plea bargains should be admissible and that no rule of...