EvidenceProf Blog

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

Tuesday, May 18, 2010

Benefit Of The Bargain: New Jersey Appellate Court Finds Improper Admission Of Plea Bargaining Statements Was Not Harmless Error

Like its federal counterpart, New Jersey Rule of Evidence 410 provides that

Except as otherwise provided in this rule, evidence of a plea of guilty which was later withdrawn, of any statement made in the course of that plea proceeding, and of any statement made during plea negotiations when either no guilty plea resulted or a guilty plea was later withdrawn, is not admissible in any civil or criminal proceeding against the person who made the plea or statement or who was the subject of the plea negotiations. However, such a statement is admissible (1) in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement should in fairness be considered contemporaneously with it, or (2) in a criminal proceeding for perjury, false statement, or other similar offense, if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

And, as the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Brabham, 2010 WL 1929560 (N.J.Super.A.D. 2010), makes clear, if a defendant's confessions made during plea discussions are admitted in violation of this Rule, it is going to be difficult for the court to find harmless error.

In Brabham, a jury found Orion T. Brabham guilty of second-degree burglary and fourth-degree theft. Those crimes were committed at the home of Catherine Zahos, and the prosecution had a good deal of incriminatory evidence against Brabham. For example, a gold medallion identified by Zahos as hers was recovered during a search of Brabham's home conducted by his parole officer in New York. Moreover,

New Jersey law enforcement officers, who testified at trial, repeated what they recalled about statements defendant made during two meetings. In April 2006, defendant told the officers that they had done their job by finding the person that did this, meaning himself. In May, defendant told the officers that he got the idea to use the back door from a television show, described the odor of smoke in the home of an old lady, "laugh[ed] about the fact that [she] kept getting up and coming back after him," and spoke of an encounter in a driveway with a woman accompanied by a large dog that caused him to abandon his plan to burglarize a home in her neighborhood.

The problem for the prosecution was that these confessions came during what were pretty clearly plea discussions at which the assistant prosecutor was present. On Brabham's appeal, the Superior Court of New Jersey, Appellate Division was thus easily able to find that Brabham's confessions were improperly admitted based upon New Jersey Rule of Evidence 410, but it still had to determine whether their admission was harmless error.

According to the court, their admission was not harmless error. Instead, it concluded that

While we have no doubt that the admissible evidence is adequate to permit a conviction, it is not sufficiently overwhelming to eliminate all reasonable doubt about whether the verdict would have been different if the statements were excluded....The statements at issue provided additional and persuasive evidence of guilt. The likely impact on jurors who heard the officers repeat defendant's recitation of facts disclosing his familiarity with the Zahos home and the victim's response to her attacker is too apparent to require elaboration. Accordingly, we conclude that defendant's conviction must be reversed and the case must be remanded for a new trial.



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