EvidenceProf Blog

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

Sunday, October 2, 2011

Waive Goodbye: Alabama Court Of Criminal Appeals Finds Defendant Can Waive Statutory Right To Credit For Time Served

Federal Rule of Evidence 410 states 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:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(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for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

That said, in its opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a defendant can waive the protections of this Rule under certain circumstances and permit the prosecutor to present evidence otherwise excludable under it to impeach the defendant (i.e., an impeachment waiver). So, does this mean that prosecutors can get defendants to waive other rules/protections to get to the plea bargaining table? Could a prosecutor get a defendant to waive the ban on the admission of propensity character evidence to get to the plea bargaining table? The rule against hearsay? The recent opinion of the Alabama Court of Criminal Appeals in Lay v. State, 2011 WL 4511228 (Ala.Crim.App. 2011), implies that the answer is "yes."

In Lay, Steven Lye appealed a circuit court's summary denial of his petition for postconviction relief.

The petition challenged his 2001 convictions for two counts of third-degree robbery...and one count of unlawful possession of a controlled substance,...and the resulting concurrent sentences, as an habitual offender, of life imprisonment for each of the robbery convictions and 15 years' imprisonment for the possession-of-a-controlled-substance conviction. The convictions resulted from guilty pleas entered by Lay pursuant to plea agreements with the State, in which Lay agreed to waive all jail credit in exchange for the State's reducing the charges against him from first-degree robbery to third-degree robbery.

In his appeal, Lye asserted that the statutory right to credit for time spent in pretrial incarceration may not be waived as part of a negotiated plea agreement.

In response, the Alabama Court of Criminal Appeals initially noted that it could locate no Alabama precedent on point. That said, the court then

conclude[d] that, because many other constitutional, statutory, and procedural protections—even some that contain mandatory language—have been found to be waivable, a criminal defendant can waive his right to credit for time spent in incarceration pending trial pursuant to a negotiated plea agreement. For instance, in United States v. Mezzanatto, 513 U.S. 196 (1995), the United States Supreme Court, in holding that a criminal defendant had waived the protections of [Federal Rule of Evidence 410], recognized that a criminal defendant could waive beneficial provisions of federal statutes, procedural and evidentiary rules, and even fundamental constitutional protections...

The court then found further support for its conclusion in the fact that

Although the appellate courts of Alabama have not previously been presented with exactly this question, other states addressing the issue whether credit for jail time can be waived have drawn essentially the same conclusion that we draw in this case.

So, does this mean that a defenant could waive the character evidence rules, the rule against hearsay, etc.? I think that the answer is "yes." Should it be that way? I don't know.



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