October 29, 2018, 10:57Jon English
Admitting portion of the record in same case
I haven't even started looking into this yet because I'm sure there's a really easy answer that a ton of you already know because it's happened to you, but it's never happened to me before.
At our final pre-trial hearing, the defense attorney brings the defendant to the bench to make a record because the defendant is rejecting my offer against advice of counsel.
Defendant, who has been sworn in, says to the judge "Look your honor, I'm guilty, okay? I'm guilty! I'm not here trying to say that I'm not guilty. But I'm not interested in the prosecutor's offer. It's just too high."
This was on the record. Court report taking it all down and everything.
Soooooo... my question is what is the EASIEST, SIMPLEST way to admit that portion of the reporter's record at the upcoming jury trial?
Like I said... haven't even researched it yet because I know one of you has the answer off the top of your head.
October 29, 2018, 15:22Larry L
A couple things come to mind - business record (with the supporting affidavit from the court reporter); official public record (with the proper predicate). Obviously a statement against interest, so no hearsay problem.
October 30, 2018, 09:32Matthew Mills
I hate to throw a wet blanket on the idea, but I would say Rule 410(b) would exclude these statements.
October 30, 2018, 16:45Larry L
I would attempt to admit the statement and argue that the plain language of Rule 410(b) applies to "discussions with the attorney" and NOT to an admission against interest made on the record in open court. Would need to see more of the transcript for context, but so long as the admission was not elicited by questioning, looks like you have at least a reasonable argument that Rule 410(b) does not apply under the circumstances (a conversation between the COURT/JUDGE and the Defendant).
October 31, 2018, 08:27Martin Peterson
It could easily be argued that this statement was not hearsay under 801(e)(2)(A) or falls within 803(24). The easiest way to prove the making and content of the statement would be to call anyone who was present and heard it. But, I am guessing that an objection under 410(b)(3) might well be valid. See Bowie, 135 S.W.3d 55. You will also find this fairly broad language in Amidon, 967 A.2d at 1135: "If negotiations for compromise of a criminal case are to be fruitful, evidence of plea-related statements
must be inadmissible in the event negotiations abort. Permitting statements made during plea proceedings to be admissible for impeachment purposes would have a chilling effect on plea negotiations."
Moreover, the question might be "guilty" of what? In other words, the scope or meaning of the admission may be ambiguous and cause its relevance to be questioned under 401-403.
October 31, 2018, 08:31Matthew Mills
Would defense consider it the same as a situation where a defendant enters a guilty plea in open court, but the judge rejects it for some reason? Certainly the guilty plea wouldn't come in under those circumstances.