Plea and Plea-Related Statements

• Author: Colin Miller
• Pages: 2-53

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Plea and Plea-Related

Statements

I. The Rule

Federal Rule of Evidence 410. Pleas, Plea Discussions,

and Related Statements

(a) Prohibited Uses. In a civil or criminal case, evidence of

the following is not admissible against the defendant who

made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either

of those pleas under Federal Rule of Criminal

Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an

attorney for the prosecuting authority if the

discussions did not result in a guilty plea or they

resulted in a later-withdrawn guilty plea.

(b) Exceptions. The court may admit a statement described

in Rule 410(a)(3) or (4):

(1) 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; or

(2) in a criminal proceeding for perjury or false

statement, if the defendant made the statement

under oath, on the record, and with counsel present.

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II. Historical Origins

The Federal Rules of Criminal Procedure were adopted in

1946. As originally enacted, and until adoption of the

Federal Rules of Evidence, the Federal Rules of Criminal

Procedure did not contain a rule rendering evidence of

withdrawn guilty pleas, pleas of nolo contendere, and offers to

plead guilty and nolo contendere inadmissible. Thereafter, the

Federal Rules of Evidence were adopted in 1975; Federal

Rule of Evidence 410 was an attempt to codify common

law precedent finding that withdrawn guilty pleas, pleas of

nolo contendere, and offers to plead guilty and nolo contendere

were inadmissible against an accused. The Advisory

Committee noted that the rationale behind holding offers

to plead guilty and nolo contendere inadmissible was that they

lead to “the promotion of disposition of criminal cases by

compromise.” In other words, as with civil negotiations

under Federal Rule of Evidence 408, the parties to a criminal

negotiation are more likely to speak candidly about the

strengths and weaknesses of their cases and reach an

agreement if they know that their statements will not see

the light of day in open court should negotiations break

down.

Soon after the enactment of Federal Rule of Evidence 410,

Federal Rule of Criminal Procedure 11(e)(6), which

contained nearly identical language, was adopted. After

later amendments, the former Rule 11(e)(6) is now Federal

Rule of Criminal Procedure 11(f), which merely states that

“[t]he admissibility or inadmissibility of a plea, a plea

discussion, and any related statement is governed by

Federal Rule of Evidence 410.”

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Of all of the Federal Rules of Evidence, Federal Rule of

Evidence 410 easily has the most complicated legislative

history, and the convoluted process that led to its adoption

understandably created confusion for the courts applying it.

The foregoing section will explain the 2 main points of

confusion created by the Rule and how the Rule was

amended in an attempt to clarify it.

III. Prohibited Evidence Under the Rule

A. Rule 410(a)(1) and withdrawn guilty pleas

Federal Rule of Evidence 410(a)(1) deems inadmissible “a

guilty plea that was later withdrawn….” There are several

circumstances under which a defendant can withdraw a

guilty plea. According to Federal Rule of Criminal

Procedure 11(d),

A defendant may withdraw a plea of

guilty or nolo contendere:

(1) before the court accepts the plea,

for any reason or no reason; or

(2) after the court accepts the plea, but

before it imposes sentence if:

(A) the court rejects a plea

agreement under 11(c)(5); or

(B) the defendant can show a fair

and just reason for requesting the

withdrawal.

If any of these circumstances apply, and a defendant is

allowed to withdraw his guilty plea, Rule 410(a)(1) prohibits

the admission of evidence of the withdrawn guilty plea

against the defendant. Thus, for instance, in United States v.

Newbert, 504 F.3d 180 (1st Cir. 2007), the defendant initially