Had a hero withdraw his plea at sexual assault sentencing. He told the probation officer that it wasn't him but if it was, then she wanted it. Any body try to use the judicial confession/stipulation of evidence in the plea paper work against the defendant at trial???

I have a similar situation except the defendant made the statements in a written PSI in reference to a evading motor vehicle case. I'd like to know the answer. I suspect that we can't use it. Are statements made to a probation officer as part of a pre-sentence investigation considered part of the plea bargaining process?

Fred, I think an objection under TRE 410(b)(3)(4) would likely be sustained. The CCA has noted that it would defeat the purpose of the rule to exclude evidence of the (withdrawn) plea but admit the defendant's statements or concessions made during plea proceeding or plea discussions. Bowie, 135 S.W.3d at 61 n.11. Since the rule specifically refers to discussions with an attorney for the prosecuting authority, maybe statements to the probation officer would be barred only if considered made during a proceeding on the plea. One court has given a pretty narrow definition to "plea discussions," i.e. something stated "in advance of the time for pleading with a view to an agreement whereby the defendant will enter a plea in the hope of receiving certain charge or sentence concessions." Meece, 348 S.W.3d 627, 650 (Ky. 2011). But, the CCA adopted a broader meaning in Bowie.

Sadly, I got no response to a similar question that I posted on the forum. Punishment Testimony

Unfortunately I don't have the time to research BUT, I do remember several court cases that, while excluding the admissibility of statements,only do so IF the Defendant does not take the stand to contradict them. Restated: If the Defendant takes the Stand and says, "it never happened" BUT had confessed to the probation officer, there are some Court cases that say exclusion is to punish the State for illegally gaining a confession, not to shield a guilty party and allow them to commit perjury. My memory is that those cases are pretty narrow but still good. If this is something of interest, tell me and I will make time to research.

Thanks all. I'm not so much interested in the statements to the probation officer as I am the forms that are part of the plea packet. One of which is a waiver of rights and an admission that the charges are true and correct. They bear his signature, that of his counsel and the Court made a finding acceptance of the packet contents and a finding of guilt. Of course the judicial finding of guilt is out the window but what about the other sworn to documents that are part of the plea???

Here may be a starting point for your research:

Canfield v. State, 429 S.W.3d 54

INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth issue, appellant complains that his trial lawyer rendered ineffective assistance of counsel by failing to object to the State's use of an affidavit he gave during plea negotiations for impeachment purposes.



A. Applicable Law
The Texas Rules of Evidence specifically limit the admissibility of certain evidence related to plea discussions:

quote:

Except as otherwise provided in this rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty that was later withdrawn;

. . . .

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority, in a civil case, that do not result in a plea of guilty or that result in a plea of guilty later withdrawn, or in a criminal case, that do not result in a plea of guilty or a plea of nolo contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.

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.

Tex. R. Evid. 410.

Impeachment of the defendant is not a permissible use of statements made during plea negotiation. Abdygapparova v. State, 243 S.W.3d 191, 206 (Tex. App.—San Antonio 2007, pet. ref'd) ("Rule 410 should bar the use of pleas and plea related statements for impeachment. Thus, the trial court erred in allowing the State to proceed with questions relating to statements made during plea negotiations."); Taylor v. State, 19 S.W.3d 858, 863 (Tex. App.—Eastland 2000, pet. ref'd) (holding that trial court's allowing State's use of plea negotiation for purpose of impeachment was "clear error"); see also Hardin v. State, No. 03-00-00337-CR, 2001 Tex. App. LEXIS 2190, 2001 WL 325047, at *2 (Tex. App.—Austin April 5, 2001, pet. ref'd) (noting appellant's argument that "no exception exists allowing use of [Rule 410] evidence for impeachment . . . comports with" several cases) (mem. op., not designated for publication).

Why even think to use it, when it's specifically prohibited?

If your case isn't strong enough to convict without threatening to use the plea paperwork if he pulls out of a plea, then you've got bigger problems than your cute little paperwork trick will cure.

quote:

Originally posted by Fred Edwards:
Thanks all. I'm not so much interested in the statements to the probation officer as I am the forms that are part of the plea packet. One of which is a waiver of rights and an admission that the charges are true and correct. They bear his signature, that of his counsel and the Court made a finding acceptance of the packet contents and a finding of guilt. Of course the judicial finding of guilt is out the window but what about the other sworn to documents that are part of the plea???