Statements Incident to Plea Bargaining

In general

• The common law, an Indiana statute, and Evidence Rule 410 all recognize that statements incident to plea bargaining may be inadmissible at trial.

Gonzalez v. State, 929 N.E.2d 699, 701 (Ind. 2010)(citing Gilliam v. State, 650 N.E.2d 45, 49 (Ind. Ct. App. 1995), reh’g denied, trans. denied)

See Green v. State, 870 N.E.2d 560, 565 (Ind. Ct. App. 2007), trans. granted, order vacated, trans. denied(citing Chase v. State, 528 N.E.2d 784, 786 (Ind. 1988))(“Generally, statements made by a defendant as part of plea negotiations are not admissible in the trial of the charge following a plea of not guilty.”)

Purpose

• The purpose behind these rules is to promote the negotiated disposition of our burgeoning criminal caseload by shielding defendants from inadvertent self-incrimination.

Mundt v. State, 612 N.E.2d 566, 567 (Ind. Ct. App. 1993), trans. denied

• Both statutes encourage the frank and open dialogue necessary between a defendant and the State during attempts to reach an acceptable agreement. It is apparent that, without these statutory protections, most defendants would be unwilling to participate in the plea bargaining process for fear that potentially damning statements could later come back to haunt them in the event the parties never reach an agreement, the defendant later withdraws his plea, or the trial court, for various reasons, refuses to accept the plea.

Mundt v. State, 612 N.E.2d 566, 567-68 (Ind. Ct. App. 1993), trans. denied

See Gonzalez v. State, 929 N.E.2d 699, 701 (Ind. 2010)(citing Stephens v. State, 588 N.E.2d 564, 565-66 (Ind. Ct. App. 1992), trans. denied)(“This rule is designed to encourage open discussion in the plea bargaining process.”)

IC 35-35-3-4

• A plea agreement, or a verbal or written communication concerning the plea agreement, may not be admitted into evidence at the trial of the case, should the plea agreement not culminate in approval by the court.

IC 35-35-3-4

Indiana Evidence Rule 410: Text of the rule

• (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(1) a guilty plea or admission of the charge that was later withdrawn;

(2) a nolo contendere plea;

(3) an offer to plead to the crime charged or to any other crime, made to one with authority to enter into or approve a binding plea agreement; or

(4) a statement made in connection with any of the foregoing withdrawn pleas or offers to one with authority to enter into a binding plea agreement or who has a right to object to, approve, or reject the agreement.

(b) Exceptions. The court may admit such a plea, offer, or statement:

(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.

Evid. R. 410

Indiana Evidence Rule 410: Relationship to IC 35-35-3-4

• The rule arguably broadens somewhat the range of privileged communication, expanding from the statutory privilege for statements “concerning” a plea agreement to those “in connection with” an agreement.

Gonzalez v. State, 929 N.E.2d 699, 701 (Ind. 2010)

Indiana Evidence Rule 410: Interpretations of “in connection with”

• Rule 410 provides no test for determining whether a statement was made “in connection with” a plea offer.

Gilliam v. State, 650 N.E.2d 45, 49 (Ind. Ct. App. 1995), reh’g denied, trans. denied(quoting Evid. R. 410)

• However, under our common law rules of evidence, to be privileged, “the communication must have as its ultimate purpose the reduction of punishment or other favorable treatment from the State to the defendant.”

Gilliam v. State, 650 N.E.2d 45, 49 (Ind. Ct. App. 1995), reh’g denied, trans. denied(quoting Crandell v. State, 490 N.E.2d 377, 380 (Ind. Ct. App. 1986), reh’g denied, trans. denied)

Indiana Evidence Rule 410: Relationship to the common law

• [W]e conclude that [Indiana Evidence Rule 410] retains Indiana common law.

Gilliam v. State, 650 N.E.2d 45, 49 (Ind. Ct. App. 1995), reh’g denied, trans. denied

• Our common law provided that a defendant's statements made to a police officer who had no authority to enter into a binding plea agreement were not privileged plea negotiations and, thus, were admissible.

Gilliam v. State, 650 N.E.2d 45, 49 (Ind. Ct. App. 1995), reh’g denied, trans. denied(citing Martin v. State, 537 N.E.2d 491, 493 (Ind. 1989))

See Green v. State, 870 N.E.2d 560, 565-66 (Ind. Ct. App. 2007), trans. granted, order vacated, trans. denied(citing Chase v. State, 528 N.E.2d 784, 786 (Ind. 1988))(“[S]tatements made by a person prior to the existence of any charge against him to a police officer who lacks authority to enter into a binding agreement are not part of the plea bargaining process.”)

• We can discern no sound reason why this common law rule should not continue under the Rules of Evidence.

Gilliam v. State, 650 N.E.2d 45, 49 (Ind. Ct. App. 1995), reh’g denied, trans. denied

Requirements for a statement to be a privileged statement incident to plea bargaining: In general

• [W]e hold that for a statement to be a privileged communication, the defendant must have been charged with a crime at the time of the statement and the prosecutor and the defendant must have initiated discussions related to a plea agreement. Second, the statement must have been made with the intent of seeking a plea agreement or in contemplation of a proposed agreement. Third, the statement is privileged if made to someone who has the authority to enter into or approve a binding plea agreement or who has a right to object to or reject the agreement.

Gonzalez v. State, 929 N.E.2d 699, 701 (Ind. 2010)

Requirements for a statement to be a privileged statement incident to plea bargaining: Interpretations of the first requirement

• [T]he privilege attaches only after a plea negotiation has begun.

Gonzalez v. State, 929 N.E.2d 699, 701 (Ind. 2010)

• The plea bargaining process does not commence until persons having the authority to make a binding agreement have agreed to negotiate.

Green v. State, 870 N.E.2d 560, 565-66 (Ind. Ct. App. 2007), trans. granted, order vacated, trans. denied(citing Chase v. State, 528 N.E.2d 784, 786 (Ind. 1988))

Gilliam v. State, 650 N.E.2d 45, 49 (Ind. Ct. App. 1995), reh’g denied, trans. denied(quoting Chase v. State, 528 N.E.2d 784, 786 (Ind. 1988))

See Gonzalez v. State, 929 N.E.2d 699, 701 (Ind. 2010)(citing Martin v. State, 537 N.E.2d 491, 493 (Ind. 1989))(“We reasoned that the plea bargaining process does not start until the parties have agreed to negotiate.”)

• “There must be an agreement, a meeting of the minds, after the leveling of a felony or misdemeanor charge, to enter into plea negotiations.”

Green v. State, 870 N.E.2d 560, 565-66 (Ind. Ct. App. 2007), trans. granted, order vacated, trans. denied(quoting Chase v. State, 528 N.E.2d 784, 786 (Ind. 1988))

• Whether the parties were engaged in plea negotiations is a question of fact for the trial court, and we review the trial court's decision only for clear error.

Green v. State, 870 N.E.2d 560, 565-66 (Ind. Ct. App. 2007), trans. granted, order vacated, trans. denied(citing Gilliam v. State, 650 N.E.2d 45, 49 (Ind. Ct. App. 1995), reh’g denied, trans. denied)

Requirements for a statement to be a privileged statement incident to plea bargaining: Interpretations of the third requirement

• Only the prosecutor has the authority to enter into a plea agreement, and certainly a defendant's statements in the course of negotiation with the prosecutor are within the privilege afforded by the plea negotiation.

Gonzalez v. State, 929 N.E.2d 699, 701-02 (Ind. 2010)

• The purposes of the rule require also excluding statements to some persons in addition to those with authority to enter into a binding agreement.

Gonzalez v. State, 929 N.E.2d 699, 702 (Ind. 2010)

• Under Indiana law, after a defendant and the State enter into a plea agreement, the trial court is required to order a presentence report. IC 35-35-3-3(a). The probation officer preparing this report is to gather information regarding “the circumstances attending the commission of the offense.” IC 35-38-1-8(a), -9(b)(1). The plea agreement must also be shown to the victim, who has a right to comment on the crime and the proposed sentence. IC 35-35-3-5. The agreement is not final until it is approved by the trial court. IC 35-35-3-3. In the course of this process, the defendant may make statements to the victim, the trial judge, or other court officers. These statements are within the language of both the statute (“concerning” a plea agreement) and Evidence Rule 410 (“in connection with” a plea agreement).

Gonzalez v. State, 929 N.E.2d 699, 702 (Ind. 2010)

Whether statements incident to plea bargaining may be used against persons other than the accused person who participated in the plea bargaining

• Rule of Evidence 410 and Indiana Code section 35-35-3-4 provide that statements made in connection with a contemplated plea agreement may not be used against a defendant if the agreement is not finalized. Both the rule of evidence and the statute are clear that use of plea negotiations is prohibited only as to the negotiating accused person . . . .

Reed v. State, 748 N.E.2d 381, 389 (Ind. 2001)

Whether the defendant may introduce statements incident to plea bargaining

• This rule also precludes a defendant from offering into evidence any communication relating to plea bargain negotiations unless the defendant subsequently enters a plea of guilty which is not withdrawn.

Crandell v. State, 490 N.E.2d 377, 380 (Ind. Ct. App. 1986), reh’g denied, trans. denied(citing Hineman v. State, 292 N.E.2d 618, 623 (Ind. Ct. App. 1973), reh’g denied)

E.g., Hineman v. State, 292 N.E.2d 618, 623 (Ind. Ct. App. 1973), reh’g denied(“The defense is offering plea bargaining negotiation testimony to show truthfulness and innocence.”)

Whether statements made after a plea agreement has been reached constitute statements incident to plea bargaining

• [The defendant’s] testimony . . . came after he and the State had reached their agreement. As previously stated, the aim of these statutes is to promote free and open discussions leading up to any plea agreement reached between the defense and the prosecution. Thus, once the bargain between [the defendant] and the State had been struck and the plea negotiations ended, the protections of IC . . . 35-35-3-4 were rendered inapplicable. We fail to understand how excluding testimony after a plea agreement had been reached would serve the purposes of encouraging guilty pleas.

Mundt v. State, 612 N.E.2d 566, 568 (Ind. Ct. App. 1993), trans. denied(some emphasis added)