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By H. Michael Steinberg Colorado Criminal Defense Lawyer – Attorney email@example.com
Colorado Plea Bargaining Negotiations – Rule 410 Statements – One of the primary fears that defendants entering in to negotiations with Colorado state prosecutors is the use of incriminating statements made during those negotiations – in the event plea bargaining LINK fails – at a later trial brought in an attempt to convict the defendant of criminal charges.
The need to be completely honest with the District Attorney – Prosecutor during plea bargaining without fear of the use of that honesty against that defendant underlies the policy considerations behind Colorado Rule of Evidence 401.
Except as otherwise provided by statutes of the State of Colorado, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in any connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer.
This rule shall not apply to the introduction of voluntary and reliable statements made in court on the record in connection with any of the foregoing pleas or offers where offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement.
Here is the Rule Broken Into Its Components
(a) Prohibited Uses. 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:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later withdrawn guilty plea.
(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.
As a former career Colorado prosecutor for Arapahoe and Douglas Counties – I am familiar with the intricacies of effective plea bargaining.
In the well known Colorado cases of Gelfand v. People and People v. Garcia – this was the reason given for the enforcement of the rule:
“If the effectiveness and integrity of the plea bargaining process are to be preserved, admissions or confessions made in connection with plea offers and negotiations must not be admitted as independent substantive evidence of guilt. The defendant should not be penalized for cooperating with the prosecution by engaging in an approved plea negotiation process which is consistent with the objectives of the criminal justice system.”
Therefore offers to plead guilty by defendant’s statements made during plea negotiations are inadmissible against the defendant who made the statement EVEN IF they do not result in a guilty plea,
or EVEN if they result in a guilty plea which is subsequently withdrawn.
Whether the communication is deemed made during plea negotiations is determined by the totality of the circumstances,… this includes of course a defendant’s subjective understanding of what is going on during those negotiations – with or without a lawyer.
The focus is on the discussions with a prosecutor and includes someone who is acting on behalf of a prosecutor in plea negotiations. These statements – may not be used to impeach a defendant at trial. However there is at least one exception – Perjury Prosecutions.
Statements made during plea negotiations not resulting in a guilty plea, or resulting in a guilty plea later withdrawn, ARE admissible in prosecutions for false statement or perjury, where the statement in question was made under oath, on the record in open court AND in the presence of his or her attorney.
If the statements are made during plea negotiations NOT resulting in a guilty plea, or resulting in a guilty plea later withdrawn, THEN they are admissible where another statement from those same plea negotiations has been admitted and fairness requires that the offered statement also be admitted.
The prosecuting attorney in the case at issue need NOT be physically present as long as his or her knowledge and consent to be bound by the plea discussions is present.
Defendant’s need to be wary because if they make the unilateral choice to provide statements to law enforcement officers who are NOT unauthorized to conduct plea negotiations – these statements may NOT be protected and may not meet the “in any connection with” any offers to plead guilty language in Rule 410 – the law.
Colorado law has also held – an defendants need to be aware – that EVEN IF incriminating statements made during failed plea negotiation are inadmissible, the defendant may still be questioned at trial about information gained from the negotiations, without proving there is an independent source for the information so gained from the defendant.
Where a prosecutor offers to allow a defendant to take the proverbial polygraph “to help resolve the case” and the defendant agree. The polygraph exam – even if it includes a waiver of the defendant’s rights may NOT be used at a later trial – if the negotiations later fall apart.
At the typical polygraph examination – a defendant receives a Miranda advisement and signs a waiver…. with the typical words “I understand that anything I say to the examiner giving the test can be used against me in a court.”
Colorado law – despite this waiver – may not use incriminating statements at trial through the testimony of the polygraph examiner. They are not admissible because the statements are made in the course of plea negotiations and therefore cannot be used at trial to impeach a defendant or as substantive evidence of his guilt.
Even if no plea agreement is ever signed by the parties under CRE Rule 410 protects “statements made in any connection with” guilty pleas or offers” The rule includes statements made during plea negotiations with prosecutors.
In the event of a polygraph – even if a prosecutor has not made a specific plea offer an even if a plea agreement is never formally concluded – the prosecutor is not allowed to use the defendant’s statements as substantive proof of guilt at trial.
“To penalize defendant for cooperating with the prosecution’s request by introducing his statements as substantive proof of guilt is palpably unfair and undermines the public policy of encouraging fair compromises.”
‘Because of the State’s active participation in encouraging the defendant to waive many of his basic rights, plea negotiations should not be a pitfall or trap to the unwary defendant whenever a plea agreement is not reached or not approved by the court.”
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author firstname.lastname@example.org or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-227-7777.
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