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August 19, 2010

"Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains"

The title of this post is the title of this new interesting piece on plea practices by Colin Miller available via SSRN.  Here is the abstract:

Federal Rule of Evidence 410 deems inadmissible statements made during plea discussions when offered “against the defendant who made the plea or was a participant in plea discussions…”  Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table.  Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence.

This article addresses the question of whether courts can consistently allow prosecutors to present defendants’ incriminatory statements made during plea discussions while precluding those same defendants from presenting evidence that they rejected favorable plea bargains.  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.

August 19, 2010 at 09:00 AM | Permalink

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Comments

sounds like the typical CRIMINAL actions of our govt. The rules apply to others NOT to them.

Posted by: rodsmith | Aug 19, 2010 2:31:22 PM

Heads we win, tails you lose. It really is a system created by and for prosecutors, isn't it?

Posted by: John K | Aug 20, 2010 9:19:59 AM

think if i was the defendatn i'd just yell it out in the court room. No matter what that crimnal judge says at that point..the JURY has heard it.

Posted by: rodsmith | Aug 21, 2010 2:06:48 AM

This a "solution" in search of a problem. No defendant has a right to a plea bargain, or plea bargaining session. If they do not like the terms that the Government selects for the plea discussions, they have the trump card, a jury trial. The Government cannot, or will not, try them all.

Regarding the inability to introduce a rejection of a favorable plea bargain, I would have to say in virtually every instance the inference the defendant would seek the jury to draw - innocence - is no more valuable than any of the other possibilities. For example, the incompentant defense attorney told the client to reject the offer, the prosecutor was lazy and did not want to try the case, the prosecutor recently took over the case from someone else who felt stronger about the merits, the prosecutor misjudged the merits, the prosecutor (or defendant and counsel) thought the judge would give a light sentence anyway, the defendant is crazy, the defendant never even considered pleading guilty, but wanted an offer from the government to reject so he could offer the rejection as evidence of innocence. The list could go on. Introducing the rejection would then require experts in criminal law, and plea bargaining, as well general concepts of limited resources to explain all the possible inferences. Going down such a road would violate FRE 403 in nearly every instance.

Posted by: David | Aug 21, 2010 3:55:35 PM

my problem with it is simple!

"Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table. Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence."

What it all boils down to is the STATE wants and DEMANDS the right to use what you said during the agreement to even GET an agreement. BUT you CAN'T use what they say!

Sorry it don't work that way. if what's said in the negotations is public then what EVERYONE says during them is public.

Cant' have it both ways.

Posted by: rodsmith | Aug 21, 2010 11:33:44 PM

David,

What do you think about the courts that have allowed defendants to present evidence that they rejected offers of immunity? Do you think that this evidence should fail the Rule 403 balancing test as well, or do you see a meaningful difference between the two types of offers/rejections?

Posted by: Colin Miller | Aug 22, 2010 7:27:43 PM

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