EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, May 8, 2009

Razing Arizona: Court Of Appeals Of Arizona Disastrously Mischaracterizes Amendment To Plea Bargaining Portion Of Rule 410

In 2006, I wrote the article Caveat Prosecutor: Where Courts Went Wrong in Applying Robertson's Two-Tiered Analysis to Plea Bargaining, and How to Correct Their Mistakes, 32 New Eng. J. on Crim. & Civ. Confinement 209 (2006). The article concerned Federal Rule of Evidence 410, which renders inadmissible, inter alia, statements made during plea negotiations and argued that courts "should adopt a version of 'caveat prosecutor' under which a prosecutor, who does not procure a waiver of the accused's rights or affirmatively explain to the accused that a meeting is not a plea discussion, assumes the risk that the accused's statements are inadmissible because they were made during plea bargaining or an attempt to open plea bargaining." In its recent opinion in State v. Campoy, 2009 WL 1124384 (Ariz.App. Div. 2 2009) the Court of Appeals of Arizona decided to construe its state counterpart to Federal Rule of Evidence 410, "narrowly, consistent with its original intent," i.e., against the defendant. The court got it wrong.

In Campoy, Leland Crockwell was charged by indictment with conspiracy to commit possession and/or transportation of marijuana for sale and possession of marijuana for sale. Subsequently, his attorney received a letter from the County Attorney indicating that if Crockwell wanted to negotiate a plea agreement, he would be required to participate in "a debriefing" or "free talk" with detectives and that once the state had the opportunity to evaluate the information he provided, a decision would be made on a plea agreement.

Crockwell subsequently met with two detectives, made a statement, and was given a plea agreement provided that he would truthfully cooperate with the investigation and prosecution of, inter alia, "any co-defendants or co-conspirators." Crockwell subsequently made a second statement to the detectives and then gave a third statement that was inconsistent with his first two statements. Therefore, pursuant to the terms of the plea agreement, the judge allowed the prosecution to withdraw from the plea agreement because Crockwell was being untruthful and/or uncooperative. The terms of the plea agreement also permitted the prosecution under these circumstances to use Crockwell's incriminating statements against him, but it was unclear whether the prosecution could only use these statements to impeach Crockwell in the event that he testified or whether it could use them as substantive evidence regardless of whether he testified.

Even though Crockwell decided not to testify, the Court of Appeals found that it did not have to address this issue because Crockwell's second and third statements were not covered by Arizona Rule of Evidence 410. And how did it reach this conclusion? Well, the court noted that Federal Rule of Evidence 410 provides in relevant part that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

Meanwhile, Arizona Rule of Evidence 410, which is somewhat different, provides that

Except as otherwise provided by applicable Act of Congress, Arizona statute, or the Arizona Rules of Criminal Procedure, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere or no contest, or an offer to plead guilty, nolo contendere or no contest to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers is not admissible against the person who made the plea or offer in any civil or criminal action or administrative proceeding.

Part of the reason for this difference is that Federal Rule of Evidence 410 was amended in 1979, and Arizona Rule of Evidence 410 was based upon the pre-amendment Federal Rule of Evidence 410. While Arizona never adopted some version of the post-amendment Federal Rule of Evidence 410, the court in Campoy construed the 1979 amendment as correcting court opinions which had interpreted the federal rule "more broadly than had been intended." Thus, while the court found that Crockwell's first statement to the detectives was covered under Arizona Rule of Evidence 410, it found that the second and third statements were not, using the 1979 amendment to conclude, "[W]e construe our Rule 410 narrowly, consistent with its original intent."  

Here's where the court went wrong. The 1979 amendment was, at least in part, intended to correct lower court opinions construing Federal Rule of Evidence 410 too broadly, but not in a way that was relevant to Campoy. Before the amendment, some lower courts had applied Federal Rule of Evidence 410 to statements made to law enforcement officials not working as agents of the prosecution. This is why Federal Rule of Evidence 410 now covers only statements made to an attorney for the prosecuting authority, with courts also determining that statements made to an agent of the prosecution are covered by the Rule. 

Now, Arizona Rule of Evidence 410 does not contain this limiting language, and obviously, the court found that Crockwell's first statement to the detectives was covered by the Rule. This means either that Arizona Rule of Evidence 410 either does not have the same requirement as its federal counterpart or that the court found that the detectives were agents of the County Attorney. 

In either case, the limiting language was not relevant to Campoy because the court did not find that Crockwell's statements were made to the wrong person; instead, it found that they were made at the wrong time, i.e., after Crockwell had already entered into a plea agreement. And how did it reach this conclusion? Well, it noted that the 1979 amendment changed Federal Rule of Evidence 410, which used to cover statements made "in connection with, and relevant to plea discussions" so that it now covers statements made "in the course of plea discussions."  

The court then concluded, "Clearly, this was intended to narrow the interpretations of the rule," citing portions of the Advisory Committee's Note to the 1979 amendment which did not actually support this conclusion. And why did these portions not support the court's conclusion? Well, as I noted above, the court got it wrong. Here's is the relevant portion of that Note:

The language of the amendment identifies with more precision than the present language the necessary relationship between the statements and the plea or discussion. See the dispute between the majority and concurring opinions in United States v. Herman, 544 F.2d 791 (5th Cir. 1977), concerning the meanings and effect of the phrases "connection to" and "relevant to" in the present rule. Moreover, by relating the statements to "plea discussions" rather than "an offer to plead," the amendment ensures "that even an attempt to open plea bargaining [is] covered under the same rule of inadmissibility." United States v. Brooks, 536 F.2d 1137 (6th Cir. 1976). 

For a fuller discussion of this issue, you can check out my article, but I think that the last sentence from this block quote makes it clear that the Advisory Committee intended to loosen the time requirement of Federal Rule of Evidence 410 so that it covered more than statements made during the actual plea bargaining process. Frankly, I'm baffled by the Court of Appeals of Arizona's conclusion that this change was "[c]learly...intended to narrow the interpretations of the rule." Normally, I would assume that the court simply skipped the Advisory Commitee's Note, but as noted above, the court actually cited to other portions of the Note in its opinion. I thus have no idea how the court so drastically mischaracterized the purpose of this change of language in the 1979 amendment.



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