703.7Plea Offers and Negotiations [Rule 410]
- The following evidence is generally not admissible against the defendant who entered the plea:
- (i) Evidence regarding a guilty plea that is later withdrawn;
- (ii) Evidence regarding a no contest plea;
- (iii) Statements made during the entry of a guilty plea that is later withdrawn;
- (iv) Statements made during the entry of a no contest plea; and
- (v) Statements made during plea negotiations with the prosecutor.
The Basic Rule
Rule 410 – Inadmissibility of Pleas, Plea Discussions, and Related Statements
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible for or against the defendant who made the plea or was a participant in the plea discussions:
(1) A plea of guilty which was later withdrawn;
(2) A plea of no contest;
(3) Any statement made in the course of any proceedings under Article 58 of Chapter 15A of the General Statutes or comparable procedure in district court, or proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable procedure in another state, regarding a plea of guilty which was later withdrawn or a plea of no contest;
(4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
However, such a statement is admissible in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.
No Use of Guilty Plea or Plea Negotiations
As a general rule, the fact that a guilty plea was withdrawn or a plea of no contest was entered, and any statements that were made pursuant to entering such a plea or during the course of negotiations related to that plea (including negotiations which did not result in a guilty plea) may not be offered into evidence, either for or against the defendant who entered the plea or made the statement. See G.S. 8C-410; State v. Walker, 167 N.C. App. 110 (2004) (defendant’s letters to prosecutor offering to confess in return for a probationary sentence were plea negotiations and could not be used to cross-examine the defendant at trial).
In addition to this rule of evidence, G.S. 15A-1025 likewise prohibits either party from offering into evidence “[t]he fact that the defendant or his counsel and the prosecutor engaged in plea discussions or made a plea arrangement.” G.S. 15A-1025 (“Plea discussion and arrangement inadmissible”).
Rule 410 does not apply to guilty pleas that were not withdrawn, so the state is free to use such a plea, or statements made during the entry of that plea, against the defendant who made it if the evidence is otherwise admissible. However, any statements made during the plea negotiations that led to that guilty plea would likely still be excluded by G.S. 15A-1025.
Additionally, Rule 410 only prohibits using evidence regarding plea negotiations and certain types of pleas against the defendant “who made the plea or was a participant in the plea discussions.” The state is not prohibited from using that evidence against an accomplice or co-defendant. See G.S. 8C-410, Official Commentary.
Limitations and Exceptions to the Rule
a) Statements to the Police
For a statement made during or about a plea negotiation (or evidence about the fact that plea negotiations occurred at all) to fall within the scope of Rule 410 and G.S. 15A-1025, the defendant must have reasonably believed that he or she was negotiating a plea with the prosecutor at the time of the statement. See, e.g., State v. Haymond, 203 N.C. App. 151 (2010) (defendant’s statements to the judge during pretrial hearing were not excluded under Rule 410 because they were made during defendant’s various requests to trial court, and defendant did not subjectively believe he was negotiating a plea with the prosecutor or with the prosecutor’s express authority).
Therefore, statements made by the defendant to a law enforcement officer usually will not be excluded by Rule 410 or G.S. 15A-1025, even if the defendant made the statement in the hope of receiving a more favorable plea offer, unless the officer was actually negotiating on behalf of (and with delegated authority from) the prosecutor. See State v. Curry, 153 N.C. App. 260 (2002) (defendant’s incriminating statements to law enforcement, made in the hopes of receiving a favorable plea offer but with a warning that no such offer was on the table or guaranteed, were not part of plea negotiations and were therefore admissible); State v. Lewis, 32 N.C. App. 298 (1977) (similar holding, where statement was made to arresting officer). See also State v. Flowers, 347 N.C. 1 (1997) (defendant’s incriminating letter sent to district attorney was admissible; mention of possibility of plea bargain did not make letter inadmissible); State v. Bostic, 121 N.C. App. 90 (1995) (allowing into evidence defendant’s statement to another inmate that “Yeah, I killed the bitch. I’ve done my time. I’ll take a plea bargain and walk.”).
For more information on related topics such as permissible subjects of plea agreements and other restrictions placed on prosecutors’ conduct during plea negotiations, see the related Pretrial entry on Plea Agreements: Negotiations and Terms.
b) Rule of Completeness
Rule 410 contains a limited exception that allows for the admission of statements made during plea negotiations if the proffered statement “ought in fairness be considered contemporaneously with” another statement made during the same discussion that has already been introduced. G.S. 8C-410. See State v. Thompson, 141 N.C. App. 698 (2001) (state permitted to cross-examine defendant about statements he made during plea negotiations after defendant testified at trial that he refused a plea offer of 17 months even though it meant risking a sentence of 7 years if found guilty).
However, there is no comparable exception found in G.S. 15A-1025, which means that the party relying upon the exception in Rule 410 to offer a statement made during plea negotiations is apparently still obligated to refrain from disclosing the fact that the parties were engaged in plea negotiations at the time the statement was made. See State v. Thompson, 141 N.C. App. 698 (2001) (noting possible conflict between the statute and the exception to the rule); State v. Jenkins, 292 N.C. 179 (1977) (even if made during plea bargaining, statements would not violate the provisions of the statute unless the fact of plea bargaining was revealed).
What does "ought in fairness..." mean?
Rule 106 is limited to writings and recorded statements, so it does not apply to unrecorded oral statements made during the course of plea negotiations. But the cases interpreting similar language found in Rule 106 regarding when portions of a statement “ought in fairness to be considered” at the same time as another statement could be argued here by analogy to support introducing evidence of a statement under Rule 410. See G.S. 8C-410, Official Commentary (noting that the language in this provision closely tracks the phrasing of Rule 106 "as the considerations involved are very similar”).
For reference and links to cases, see the related Evidence entry on Rule of Completeness [Rule 106].
Finally, it may be possible for the defendant to waive the protections given by Rule 410. In United States v. Mezzanatto, 513 U.S. 196 (1995), the defendant in a federal prosecution agreed that any statements he made during plea negotiations could be used later to impeach him, and the Supreme Court held there was no error when his statements were, in fact, used to impeach him at trial. North Carolina's appellate courts are not required to interpret state evidentiary rules and statutes in the same way that the federal courts have, but Rule 410 and G.S. 15A-1025 are very similar to the federal rules that were involved in this case.
Rule 408: Defendant's Offer to the Victim?
If the defendant (or another person acting on the defendant's authorization) contacts the victim directly and offers money or other consideration in return for the victim's agreement to "drop the charges" or stop cooperating with law enforcement, the defendant's statements regarding that offer are not excluded from evidence by Rule 410 because they were not made "in the course of plea discussions with an attorney for the prosecuting authority." G.S. 8C-410. See generally State v. Curry, 153 N.C. App. 260 (2002) (defendant’s statements to a law enforcement officer made outside of formal plea negotiations were not excluded under Rule 410); State v. Bostic, 121 N.C. App. 90 (1995) (defendant’s statements to another inmate about taking a plea were not excluded under Rule 410). Instead, the admissibility of the defendant's statements regarding the offer would be determined in accordance with the normal rules of evidence governing hearsay, relevance, and prejudice.
The defense may argue that the defendant's statements to the victim fall under Rule 408, "Compromise and Offers to Compromise," a rule that is more commonly used in civil cases. Rule 408 states that an offer to furnish "valuable consideration" in order to settle a disputed claim is not admissible for the purpose of establishing fault or damages. Id. The rationale behind this rule is that a settlement offer should not be treated as substantive evidence because "the offer may be motivated by a desire for peace rather than from any concession of weakness of position," and a rule ensuring that such offers will not be used against the party promotes "the public policy favoring the compromise and settlement of disputes." G.S. 8C-408, Official Commentary.
However, the final provision of Rule 408 contains an important exception for criminal cases: the rule "does not require exclusion when the evidence is offered for another purpose, such as [...] proving an effort to obstruct a criminal investigation or prosecution." G.S. 8C-408. In other words, an "effort to 'buy off' the prosecution or a prosecuting witness in a criminal case is not within the policy of the rule of exclusion," and therefore the defendant's statements to the victim would not be excluded under this rule. G.S. 8C-408, Official Commentary. See also State v. Brewington, 58 N.C. App. 650 (1982) (holding that "the making of the offer to compromise may be considered as substantive evidence of guilt if the offer was made by the defendant, at his request, or with his authorization," and in this case the statement was admissible against the defendant because circumstantial evidence established that he had authorized his aunt to make the offer on his behalf).
Alternatively, the defendant's statements may be admissible for "another purpose" under Rule 408, such as establishing ownership, possession, bias, or prejudice. See G.S. 8C-408; State v. Hughes, 235 N.C. App. 425 (2014) (unpublished) (where "emails and other documents regarding Defendant’s settlement of civil claims by the owner against Defendant for property damage" were "tendered in a criminal trial to establish Defendant's constructive possession" of the property, the evidence was "admissible and its admission [did] not violate Rule 408").