Conventional wisdom around the courts I've practiced in has been that you can't talk about the terms of a plea bargain that was offered pre-trial, or even that a plea bargain was ever offered. And I can see that it may not be relevant to guilt/innocence depending on the facts of the case.
I've got a case where I think the fact that the defendant has rejected lenient plea bargains is actually relevant and helpful to the State (trust me... I know that sounds weird).
I've looked but have not been able to find an outright prohibition against testimony regarding what the State offered as a plea-bargain before trial. Does anyone have an example of a ruling that says you can or can't have that kind of evidence at guilt/innocence?
Rule 408 TRE?
Yeah... it's that qualifier in 410 I guess I need to focus in on for more research. That doesn't sound very bulletproof to me.
"Plea discussions" is an interesting term. Very often a prosecutor unilaterally commences, or at least entreats, negotiations for an admission of guilt and waiver of rights. An unsolicited offer is thrown out. Has a discussion taken place at that point?
The concern behind the rule is the potential "discrediting" of a subsequent assertion of innocence. If some part of the negotiation (set of statements) can survive a Rule 403 objection, then maybe that part is admissible.
But, I think that in most situations, you will be trying to use a defendant's ultimate insistence on his right to a full-blown trial to his detriment. Comment of any sort about the exercise of a constitutional right is fraught with danger.
Your best bet may lie in an argument that the protection of the rule was waived. United States v. Mezzanatto, 513 U.S. 196, 210-11, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995).
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