A cautionary tale

The ever sentient Prof. Colin Miller brings us a good reminder to be careful, at his evidence prof blog.

Federal Rule of Evidence 410(a)(4) states as follows: (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:…. (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attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

Military Rule of Evidence 410(a)(4) has a slight but meaningless difference and states as follows:

(4) any statement made during plea discussions with the convening authority, staff judge advocate, trial counsel or other counsel for the government if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

The import of the military rule is the same, so Prof. Miller’s questions and caution remain the same. He asks:

But when exactly are there qualifying plea discussions? Most courts utilize the test created by United States v. Robertson, 582 F.2d 1356 (5th Cir. 1976), which requires a defendant to prove (1) that he exhibited an actual subjective expectation to negotiate a plea at the time of the discussion; and (2) that this expectation was reasonable given the totality of the circumstances.

As Prof. Miller points out, whether the situation in part (a) applies is rare, although it caught the Appellant in Hogan v. United States, 2013 WL 6670630 (11th Cir. 2013).

My practice has usually been to limit pretrial agreement proffers to my recitation of what the client would say. If that isn’t sufficient for a trial counsel or SJA, then something in writing may be required. Regardless, it is always best to be clear with the trial counsel up front that what you are discussing is a “410 disclosure.” I say that because it isn’t clear whether statements made by the attorney on behalf of the criminal client are admissible under MRE 801(d)(2)(C) or (D). Even if the issue were resolved in the client’s favor, it’s not a battle you need to be fighting. Such a battle creates tension with the client and may lead to a conflict of interest if the client raises IAC at the trial or you need to be a witness. It’s equally a problem for the trial counsel if only you and the trial counsel were parties to the oral disclosures, so that smart trial counsel may not want to go there anyway. But why be there when you can be clear up front.