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Rule 410 Inadmissibility of Pleas Plea Discussions and Related Statements

  1. militarydefenselawyers372In general. Except as otherwise provided in this rule, evidence of the following is not admissible in any court-martial proceeding against the accused 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 a plea of guilty which was later withdrawn;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 nolo contendere;
    3. any statement made in the course of any judicial inquiry regarding either of the foregoing pleas; or
    4. any statement made in the course of plea discussions with the convening authority, staff judge advocate, trial counsel or other counsel for the Government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.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 (i) 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, or (ii) in a court-martial proceeding for perjury or false statement
      if the statement was made by the accused under oath, on the record and in the presence of counsel.
  2. Definitions. A “statement made in the course of plea discussions” includes a statement made by the
    accused solely for the purpose of requesting disposition under an authorized procedure for administrative
    action in lieu of trial by court-martial; “on the record” include the written statements submitted by the
    accused in furtherance of such request.
  1. Rule 410. The rule aims to encourage legitimate plea bargaining by protecting
    open, candid discussions between the accused and the prosecution. See Notes of
    Advisory Committee to Federal Rule of Evidence 410 (1975); Standard 14-2.2,
    ABA Standards Relating to Pleas of Guilty (1986). Mezzanatto v. United States,
    513 U.S. 196 (1995).
  2. The Military Rule extends to pretrial agreements, or discussions of the same with
    the trial counsel, staff judge advocate, or convening authority or other counsel
    for the Government. The federal rule extends only to “an attorney for the
    prosecuting authority.”
  3. The following are inadmissible against an accused:
    1. A plea of guilty that is later withdrawn;
    2. Any statement made by the accused and defense counsel in the course of
      the providence inquiry concerning a plea of guilty that is later
      withdrawn;
    3. Any statement made by the accused and defense counsel in the course of
      plea discussions which do not ultimately result in a plea of guilty or
      which result in a plea of guilty that is later withdrawn.
  4. United States v. Vasquez, 54 M.J. 303 (2001). Accused submitted a chapter 10
    request admitting to a 212 day AWOL. That charge was not before the court.
    Government admitted that request in the sentencing case as part of the accused’s
    service records. CAAF said that accused’s statements were covered by Rule 410
    in light of the court’s long-standing precedent for avoiding an excessively
    formalistic application of the rule in favor of a broad application.
  5. Rule 410 Examples.
    1. United States v. Barunas, 23 M.J. 71 (C.M.A. 1986) (accused’s letter to
      commander requesting non-judicial disposition of use and possession of
      cocaine charges was inadmissible under Rule 410).
    2. United States v. Brabant, 29 M.J. 259, 264-65 (C.M.A. 1989) (accused’s
      statement that he would do whatever it took to “make this right” was
      inadmissible).
    3. United States v. Watkins, 34 M.J. 344 (C.M.A. 1992) (accused’s
      questions to investigator as to amount of likely prison sentence is not
      plea negotiation as CID not within enumerated exceptions of Rule 410).
    4. United States v. Balagna, 33 M.J. 54, (C.M.A. 1991). CSM testified
      concerning the accused’s duty performance. CSM previously had
      spoken for the accused in an Article 15 hearing based on a positive
      urinalysis, but stated that because of a report he had read, he would not
      do so again. Court member asked about the report. The panel was told
      about a Chapter 10 request, and the judge instructed that the report had
      no relevance to the trial.
    5. The Government may be able to introduce such evidence if it can
      establish that the same information was independently obtained or
      pursuant to other theories. See United States v. Magee, 821 F.2d 234
      (5th Cir. 1987).

a plea of guilty which was later withdrawn

a plea of nolo contendere