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

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Tuesday, August 17, 2010

My New Article -- Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence That They Rejected Favorable Plea Bargains

Today, I posted my new article, Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains, on 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
 

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/08/my-new-article-deal-or-no-deal-why-courts-should-allow-defendants-to-present-evidence-that-they-reje.html

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Comments

You may have missed the case of US v. Sypher, in which Karen Syfer was convicted for attempting to extort money from Rick Pitino. During the prosecution's case-in-chief, Sypher's estranged husband was permitted to testify that she told him she rejected a plea deal so she could take Pitino down in a public trial. If she said that, it was an out of court admission, so no hearsay problem, but the implication was that she knew she was guilty but was motivated by malice. Of course, the prosecution could not have introduced statements made in plea negotiations. Was this a way around the rule? I thought the testimony was prejudicial and objectionable. What do you think?

Posted by: Rick Underwood | Aug 17, 2010 6:34:58 AM

Rick,

Under Rule 606(b), jurors are precluded from impeaching their verdicts. In large part, the Rule is designed to protect jurors from harassment and intimidation by losing parties. And, even if a juror tells someone about juror misconduct after the verdict is entered, that other person still can't impeach the verdict. Courts have reached this conclusion not simply based upon the rule against hearsay but also based upon the recognition that the Rule would have no meaning if the other person could impeach the verdict under these circumstances.

I think that the same logic applies to the Sypher case, and I am guessing that the only reason that the court allowed the testimony was that defense counsel did not object.

Posted by: Colin Miller | Aug 17, 2010 11:36:52 AM

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