Letter of the Law: Court of Appeals of Wisconsin Finds Defendant's Testimony Inadmissible Under Plea Deal

Wisconsin Rule of Evidence 904.10 provides that

Evidence of a plea of guilty, later withdrawn, or a plea of no contest, or of an offer to the court or prosecuting attorney to plead guilty or no contest to the crime charged or any other crime, or in civil forfeiture actions, is not admissible in any civil or criminal proceeding against the person who made the plea or offer or one liable for the person's conduct. Evidence of statements made in court or to the prosecuting attorney in connection with any of the foregoing pleas or offers is not admissible.

So, assume that a prosecutor sends defense counsel a letter “making the following offer of resolution based on [the defendant] being willing to cooperate in the prosecution of numerous cases involving [another defendant].” Also, assume that the letter indicates that the prosecutor will make a sentencing recommendation if the defendant, inter alia, testifies at the preliminary examination for another defendant. Finally, assume that the defendant complies with this requirement but then stops cooperating with the prosecution after he believes that the State leaked incriminatory information to the press for the newspaper article. At the defendant's ensuing trial, can the prosecution introduce the defendant's preliminary examination testimony, or is such testimony inadmissible under Wisconsin Rule of Evidence 904.10? This was the question addressed by the Court of Appeals of Wisconsin in State v. Myrick, 2013 WL 4734062 (Wis.App. 2013).

In Myrick, the facts were as stated above. In addressing the aforementioned question, the Court of Appeals clinically broke down Wisconsin Rule of Evidence 904.10 into 6 components:

• “Evidence of statements made in court”

• “in connection with”

• “an offer”

• “to the ... prosecuting attorney”

• “to plead guilty”

• “is not admissible in any ... criminal proceeding against the person.”

The court then noted that

This is what we have so far: First, Myrick's “statements” at issue, his preliminary examination testimony, were “made in court.” Second, these “statements” were made “in connection with” Myrick's on-going obligation to fulfill the State's conditions in connection with the State's prosecution of Winston. This leaves whether Myrick's preliminary-examination testimony was “in connection” with his offer to the prosecutor, rather than, as the State argues, merely “an offer by the prosecutor to Myrick.” It also leaves whether under Wisconsin case law Myrick's preliminary-examination testimony was protected by [Wisconsin Rule of Evidence 904.10].

In response to the first question, the Court of Appeals of Wisconsin concluded that

A fair and complete reading of the State's letter shows that he did: the State was prepared to offer Myrick a significantly reduced charge and a lenient sentencing recommendation if Myrick complied with what the letter required. It is not reasonable to suggest, as the State does, that the reduced charge and sentencing recommendation set out in the letter was not part and parcel of Myrick's reciprocal offer to the State; the prosecutor's letter clearly envisioned that at the end of the road the letter plotted Myrick would “plead guilty” or one of its accept-conviction variants....Here, the only way Myrick could get the offered sentencing recommendation was to plead guilty or one of the variants. Thus, Myrick's “offer to the ... prosecuting attorney” was similarly “implicit” in the prosecutor's letter.

Then, in response to the second question, the court analyzed five prior opinions interepreting Wisconsin Rule of Evidence 904.10 and used them to conclude that

Although Myrick's refusal to continue to cooperate with the State following his preliminary-examination testimony permitted the State to not make either the proposed reduction in the charge or the proposed sentencing recommendation, it did not make admissible that preliminary-examination testimony because, as we have seen, the plea-bargaining process was still ongoing. The State was not yet bound to give Myrick the charge or sentencing concessions. Indeed, Myrick gave the preliminary-examination testimony at a time when the parties could still have dickered over the sentencing recommendation and even the proposed charge concession because all of that would have depended on Myrick's value to the State's pursuit of Winston. The trial court thus erred in allowing the State to use Myrick's preliminary-examination testimony in its case-in-chief;...Wisconsin Rule of Evidence 904.10] trumps other evidence rules if they conflict. We reverse.

-CM