Wednesday, January 22, 2014
Federal Rule of Evidence 410(a)(2) provides that
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:....
(2) a nolo contendere plea
That said, some courts have held that Rule 410(a)(2) does not apply when the person entering the nolo contendere plea later becomes a civil plaintiff. This issue was the subject of my article, The Best Offense is a Good Defense: Why Criminal Defendants' Nolo Contendere Pleas Should be Inadmissible Against Them When They Become Civil Plaintiffs. It was also the subject of the recent opinion of the Third Circuit in Sharif v. Picone, 2014 WL 211805 (3rd Cir. 2014).
In Picone, Iman Sharif appealed from a jury verdict in favor of the defendants-several Northampton County Prison officers—on Sharif's 42 U.S.C. § 1983 excessive force claim. On appeal, Sharif argued that the District Court erred in admitting evidence of his prior plea of nolo contendere and resulting conviction for assault in connection with the incident that was at the heart of his § 1983 claim.
According to the Third Circuit, the prohibition in Rule 410(a)(2)
is based on the fact that "a nolo plea is not a factual admission that the pleader committed a crime. Rather, it is a statement of unwillingness to contest the government's charges and an acceptance of the punishment that would be meted out to a guilty person."...An important policy consideration animating Rule 410 is that it encourages compromise in criminal cases, which, in turn, lessens the burden on courts, defendants and prosecutors, producing a more efficient criminal justice system....Thus, the use of a nolo plea as tantamount to an admission of guilt would defeat one of its primary purposes.
That said, the court acknowledged that "[d]espite Rule 410's apparent clear command, there is caselaw supporting the admission of a defendant's nolo plea in certain circumstances." Specifically, the Third Circuit cited Walker v. Schaeffer, 854 F.2d 138 (6th Cir.1988), a false arrest case in which the court upheld the admission of the civil plaintiffs' nolo pleas. According to the Third Circuit, this case has "been cited by district courts within our Circuit, as well as by the Tenth Circuit, for the proposition that nolo contendere pleas are not always precluded by Rule 410, particularly when a pleader attempts to bring a § 1983 claim against officials for false arrest, false imprisonment or malicious prosecution."
In Picone, however, the Third Circuit was not convinced. Instead, it concluded as follows:
We view Walker as imprecise, and in any event, distinguishable. First, Walker's reference to a defendant "having admitted facts" through a nolo plea...misconstrues the nature of the plea. Indeed, we held in United States v. Adedoyin, 369 F.3d 337, 344 (3d Cir.2004), that a nolo plea is not an admission....Second, the logic of Walker seems to flow from the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477, 487 (1994), where the Court held that when a § 1983 claim amounts to a collateral attack on a criminal conviction, the conviction or sentence must be reversed, or invalidated by other means, before a court can entertain the claim. Similarly, the collateral attack in Walker would not be permitted, presumably, as a matter of fairness, outweighing the dictates of the Federal Rules of Evidence. But we need not decide whether Rule 410 stands as a bar to the admission of a nolo plea when a defendant levels a collateral attack on his prior conviction.