Practiced at the Art of Deception?: Supreme Court of South Carolina Uphold Plea Bargain Waiver Tied to Polygraph Test

Under South Carolina Rule of Evidence 410, a defendant's statements during plea discussions are inadmissible against him at a subsequent criminal or civil trial. Pursuant to the Supreme Court's opinion in United States v. Mezzanatto, a defendant can waive the protections of Rule 410, with the prosecution often using such waivers as the ante for defendants to get to the plea bargaining table. But I've never seen a waiver quite like the one in State v. Wills, 2014 WL 3461808 (S.C. 2014). Pursuant to the waiver in Wills,

petitioner agreed that if a subsequent polygraph examination demonstrated deception, inconsistencies, or that petitioner shot the victim, then "the terms of this proffer are null and void and any statements made by [petitioner] may be used against him by the State for any legal purpose, including...disposition of charges through plea or trial...and impeachment."...Further, section 7 provide[d] in relevant part not only that petitioner's violation of the Agreement would render the Proffer's terms null and void, but also that "the State shall have the right to use any information obtained through this Proffer in any fashion, whether direct [or] collateral...."

So, was the waiver constitutional and enforceable? That was the question addressed by the Supreme Court of South Carolina in Wills.

The court had to address this question because the defendant, charged with accessory after the fact and obstruction of justice, did indeed "fail" a polygraph exam, prompting the trial court to enforce the waiver in full, with the Court of Appeals of South Carolina affirming on appeal. In a terse majority opinion, Justice Pleicones quickly concluded:

Applying the rules of contract construction here, "regardless of the agreement's wisdom or lack thereof," we agree with the Court of Appeals that, on this record, petitioner's Proffer Agreement, entered with the advice and consent of counsel, waived the protections of Rule 410, SCRE.

Justice Beatty, however, dissented in a much lengthier opinion, finding the trial court's decision violated both principle of contract law and South Carolina Rule of Evidence 410. First, with regard to contract law, Justice Beatty concluded that

As drafted by the State, section 7 of the proffer agreement states that "[v]iolation of any term of this Proffer renders all terms null and void."...Accordingly, by claiming that Petitioner violated the agreement, the State nullified the entire agreement, including the waiver provision. In essence, the State rescinded the agreement and avoided its contractual obligations by merely alleging Petitioner's statement was deceptive and nothing more. This rescission rendered Petitioner's statements inadmissible per se....

Here, the State rescinded the proffer agreement based on its assessment that Petitioner breached the agreement by purportedly failing the polygraph examination. Thus, by their actions, the parties were returned to the position as if there were no proffer agreement....In the absence of a proffer agreement, Petitioner's statements were deemed inadmissible for any purpose under Rule 410. Accordingly, I would find the Court of Appeals erred in affirming the decision of the trial judge.

Second, turning to South Carolina Rule of Evidence 410, Justice Beatty acknowledged Mezzanatto and correctly noted that it only approved of impeachment waivers. An impeachment waiver allows the prosecution to use a defendant's plea bargaining statements at trial only if the defendant takes the witness stand and makes inconsistent statements, with the prior statements only being admissible to show the contradiction and not the substance of the prior statements.

As Justice Beatty further noted, in Mezzanatto, the Supreme Court showed some reluctance of approve of case-in-chief waiver. A case-in-chief waiver allows the prosecution to use the defendant's plea bargaining statements substantively as part of its case in chief should the case proceed to trial. As I have previously noted, five federal circuits, including the Fourth Circuit, have since approved of case-in-chief waivers. Justice Beatty, however, disagreed with this precedent, citing various authorities to support his conclusion that "a decision to limit the prosecution's use of a defendant's statements to impeachment effectuates the purpose and protections of Rule 410."

Finally, Justice Beatty expressed concern with the waiver hinging on a polygraph test, concluding that

Because our appellate courts have repeatedly recognized the unreliability of these tests, I believe it was inherently unfair for the State to use subjective results to procure the only substantive evidence against Petitioner....Moreover, to allow the prosecution to declare the agreement null and void for reason of deception and then not require the prosecution to identify the deception and its materiality to the agreement is fundamentally unfair and violates the general principles of contract law.

-CM