Can We Talk? Inadvertent Admissions During Negotiations in Criminal Cases - Articles

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Posted by: Wade Davies on Jul 1, 2012

Journal Issue Date: Jul 2012

Journal Name: July 2012 - Vol. 48, No. 7

Prosecutors and defense counsel who practice together regularly may take for granted the ability to have candid discussions about their cases without worrying about their statements being used against their clients in court. After all, we all know that such discussions are protected by state and federal rules of criminal procedure and evidence, right? Maybe not.

In state and federal court, evidence rules protect offers of compromise, Rule 408,[1] and plea discussions, Rule 410[2]. Rule 11 of the criminal procedure rules protects plea discussions even if a plea is withdrawn or rejected.[3]

What about informal discussions or proffers made with the hope of persuading a prosecutor not to seek an indictment? Absent an agreement between the parties not to use such information, it may be fair game. Rule 410 of the Federal Rules of Evidence may not be as broad as you think.

The purpose of the rules is to encourage discussion and to promote compromise.[4] That said, Rule 410 only protects a guilty plea that was later withdrawn, a statement made during a plea hearing in court, or:

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attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.[5]

Many times counsel might wish to present the other side with either a written packet or an oral proffer of evidence obtained that might cause the other side to want to reassess their position. Sometimes, because of the lack of formal discovery, defense counsel is faced with completing this task with limited information. Consider this situation carefully. The prosecutor can take the position that the information submitted was not a “plea discussion,” because the defendant was not seeking to plead guilty but to avoid prosecution.

Some courts have recognized that there is a fine line between seeking to dissuade prosecution and seeking a favorable plea agreement:

[T]he government suggests that the purpose of the meeting was not to negotiate a plea; rather it was to see if the defendant had enough information to interest the government in starting plea negotiations, or possibly he might convince the government to abandon its case against him. Perhaps there is a distinction between a meeting in the nature of plea negotiations and one in which the parties’ interest in embarking on plea discussions is assessed. However, if a line can be drawn between the two, it is not bold enough to withstand Rule 410’s effect. The court believes that such meetings, characterized as “preliminary discussions” and “proffers” by the government, constitute plea negotiations, albeit, perhaps, only in their nascent stages. Nonetheless, admissions, concessions, revelations, or confessions made by a defendant (or a putative defendant) during such a conference fairly are characterized as “statement[s] made in the course of plea discussions” within the meaning of Rule 410, and as such the defendant enjoys immunity from the use of those statements within the limits of Rule 410.[6]

Other courts have reached a contrary result and admitted statements made during pre-indictment meetings where the defendant sought to avoid indictment.[7]

Before making a proffer that might be held to fall outside the technical definition of a “statement made during plea negotiations with an attorney for the prosecuting authority,” counsel should consider seeking a formal agreement that the information will be protected to the same extent as it would be protected under Rule 410.[8]

Plea discussions covered by the rule can occur even when a prosecutor is not present for the discussions, as long as the discussions are occurring at the prosecutor’s direction.[9] On the other hand, even when the prosecutor knew about a meeting, where an agent told the defendant that the prosecutor would have to make the decision to bring to the court’s attention any cooperation, and the agent was not authorized to negotiate a plea agreement, the defendant’s statements were admissible.[10]

Additionally, be aware that even the protections of Rule 410 can be waived.[11] A prosecutor may insist on waiver of certain aspects of Rule 410’s protection before accepting a proffer or agreeing to talk to the defendant or defense counsel.[12] The Supreme Court has approved such waivers.[13] Proffer agreements allowing the prosecution to use information disclosed during negotiations to rebut even an argument by defense counsel at trial have been upheld.[14] To add insult to injury, in Fifer, the government called prior defense counsel to testify about the statements made by the defendant in a proffer session.[15] No one wants to be in that lawyer’s position, so be careful what you sign.

The timing of the statements may also be important. The Sixth Circuit affirmed the admission of statements that defendants made to the FBI agent after they negotiated their plea agreements and pleaded guilty.[16] Rule 410 did not apply because the statements were not made during plea negotiations but rather as a result of the plea agreement that required cooperation.[17]

Similarly, offers of compromise may not be protected. Federal Rule of Evidence 408 generally excludes offers of compromise, but its terms do not apply in criminal cases. The United States Court of Appeals for the Sixth Circuit recently affirmed the admission of an offer to compromise as evidence in a criminal case.[18] In Cunningham, the court addressed a set of facts that is probably more interesting than the evidentiary point made here.[19] As the court described the attorney-defendants:

Shirley Cunningham Jr. and William Gallion were two of three Kentucky lawyers who represented several hundred Kentucky clients in a mass-tort action against the manufacturer of the defective drug “fen-phen.” They settled the case for $200 million, which entitled them under their retainer agreements to approximately $22 million each in attorney fees. But rather than limit themselves to what they had contractually earned, Cunningham and Gallion concocted a fraudulent scheme to take from their clients almost twice that amount.[20]

For our purposes, the important fact was that the defendants made admissions in their previous proposal to accept disbarment from the Kentucky Bar.[21] Those admissions, while clearly an offer of compromise and settlement, were introduced as substantive evidence in the federal criminal case. No evidentiary rule barred admission. When offering to agree to disbarment, those lawyers probably did not consider that they were creating evidence that was later going to be used as an admission in a criminal case.

Most of these issues can be avoided by agreement. If a prosecutor wants to receive information, and defense counsel believes it is in the client’s best interest to provide information, the parties can agree on the terms. The issue can often be resolved with a simple written statement that the submission will have the protection equivalent to that provided plea discussions under Rule 410.[22] If the parties cannot agree on what protection a submission should have, perhaps it is best not to make one at all.


  1. Fed. R. EvId. 408.
  2. Fed. R. EvId. 410.
  3. Fed. R. Crim. P. 11.
  4. See Fed. R. EvId. 410 advisory committee’s notes (stating that the purpose of the Rule is “promotion of disposition of criminal cases by compromise”).
  5. Fed. R. EvId. 410(a)(4) (emphasis added).
  6. United States v. Ross, 588 F. Supp. 2d 777, 783 (E.D. Mich. 2008).
  7. United States v. Edelmann, 458 F.3d 791 (8th Cir. 2006) (en banc).
  8. Fed. R. EvId. 410.
  9. State v. Hinton, 42 S.W.3d 113, 122-23 (Tenn. Crim. App. 2000).
  10. United States v. Greene, 995 F.2d 793 (8th Cir. 1993).
  11. Fed. R. EvId. 410.
  12. Id.
  13. United States v. Mezzanatto, 513 U.S. 196 (1995).
  14. United States v. Fifer, 206 F. App’x 502, 510 (6th Cir. 2006).
  15. Id., at 505.
  16. United States v. Marks, 209 F.3d 577, 582 (6th Cir. 2000).
  17. Id. at 582.
  18. United States v. Cunningham, No. 09-5987, 2012 WL 1500180 (6th Cir. May 1, 2012).
  19. Id.
  20. Id. at *1
  21. Id.
  22. Fed. R. EvId. 410.

Wade Davies WADE DAVIES is the managing partner at Ritchie, Dillard & Davies PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.