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Question 1

What is involved in the extrinsic evidence category of plea offers and related statements made during plea negotiations?

Answer 1

In a civil or criminal case, evidence of these things is not admissible against the defendant that made the plea or participated in the plea discussion:
– a guilty plea that was later withdrawn
– a nolo contender plea
– a statement made during the proceeding on either of those pleas
– 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attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later withdrawn plea
** can’t use evidence of a plea offer to show guilt

Question 2

What are the things that are protected in the extrinsic policy of plea offers?

Answer 2

Both the plea offer and any statements made during the negotiations

Question 3

What do offers to compromise and plea offers as extrinsic evidence categories have in common?

Answer 3

Offers to compromise are for civil cases, and plea offers are for criminal cases

Question 4

What is the rationale behind the extrinsic policy for plea offers?

Answer 4

The court doesn’t want people to refuse to negotiate with a prosecutor because they are afraid that their statements will be used against them at trial

Question 5

What are the exceptions where the extrinsic evidence category of plea offers and related statements would not stop evidence from coming in?

Answer 5

You can introduce a statement in any proceeding where another statement was made during the same plea/plea discussion was introduced, if in fairness the statements ought to be considered together, and in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, or with counsel present. You can also introduce a statement made in pre-trial talks with the prosecution if they are under oath if the defendant lies about what he said

Question 6

Can you use evidence from plea offers or related statements made during plea negotiations to impeach a party?

Answer 6

No. Although a federal prosecutor can ask the defendant to waive the right not to be impeached by these statements before entering the pre-negotiations

Question 7

If in a plea negotiation the defendant admitted to killing the victim, but on the stand he says he never touched the victim, can you use his plea statement to impeach him?

Answer 7

No. But if the prosecutor got a waiver of the right not to be impeached from the defendant before negotiations began, then it would be OK

Question 8

What is the difference between the FRE and California regarding plea offers as an extrinsic policy?

Answer 8

California says that plea negotiations can be used for impeachment. Proposition eight says that statements made during plea negotiations are relevant, so it technically allows them to come in, limited by the judge’s discretion under 352 to keep them out. Although no court has ever ruled this way for fear of what it would do to the justice system

Question 9

If you are writing an essay that deals with the extrinsic policy of plea offers, what do you have to say as far as impeachment goes for the FRE and California?

Answer 9

Analyze admissibility of the plea offer under the California evidence code, and then mention how proposition eight would affect the outcome if it was applied

Question 10

If a defendant is charged with murder, and the prosecution offers a plea for second degree, which the defendant initially accepts, then changes his mind, at trial can the prosecution offer evidence that defendant was willing to plead the second-degree murder?

Answer 10

This would not be allowed in federal court, but it would be allowed in California. A withdrawn plea is relevant because of prop eight, so admissible subject to undue prejudice analysis under 352. In reality no court has ever allowed this statement, but a stickler for the rules would say that the statement should be admissible

Question 11

If a defendant is arrested for murder, and at the station the police tell him they can put in a good word for him if he tells them what happened. The defendant admits to the murder, and the prosecution rejects the offer. At trial would it be proper for the prosecution to offer the defendant’s statement of admission?

Answer 11

In federal court only statements made to the prosecuting attorney are protected, so this statement would be allowed in. In California any statement made during a bona fide negotiation is protected, even if there’s no prosecutor present. Because defendant said this in response to the police saying they could influence a plea deal, it would be excluded. But under proposition eight, it is relevant, so technically admissible although no court would allow it

Question 12

Does the extrinsic evidence policy relating to plea offers apply to a guilty plea itself?

Answer 12

No.

Question 13

What is a nolo contendere plea?

Answer 13

Latin for “no contest.“ It is like a guilty plea in a criminal case, but means that the plea cannot be used against the defendant in a later civil proceeding

Question 14

What is the rationale for nolo contendere pleas?

Answer 14

The court wants to encourage people to plead guilty to criminal charges without having to worry about the plea having issue preclusion effect in a later civil proceeding based on the same events

Question 15

If a defendant is charged with first-degree murder and he plead nolo contendere, then the family of the victim sues him civilly for wrongful death and tries to support their claim by offering the defendant’s plea of nolo contendere to the murder charge as evidence that he wrongfully caused the death of the victim, would that be allowed?

Answer 15

No, you cannot use nolo contendere pleas in civil trials

Question 16

What is the difference between California and federal court for nolo contendere pleas related to the extrinsic policy of plea offers?

Answer 16

California wants juries to know the truth, so nolo contendere pleas are not admitted for misdemeanors, but they are admitted for felony charges

Question 17

What is the only statements that are protected under the extrinsic policy for plea offers and statements?

Answer 17

It only protects statements that are made during plea negotiations with an attorney for the prosecution. So a statement made to police is not protected

Question 18

If a defendant is charged with larceny for stealing alcohol, in his case in chief on direct the attorney asks if he took alcohol and he says he never went in the store. Then in the prosecution’s rebuttal case they call the arresting officer and ask him what the defendant said after being mirandized. The cop says the defendant said he forgot to pay for the alcohol and asked if the cop could cut him a deal, would this information be allowed?

Answer 18

Yes because even though that exact statement if made to a prosecuting attorney would be kept out by the extrinsic policy of plea offers and statements, this statement was made to a police officer. So it is not protected.

*** If the defendant was induced to reasonably believe that a police officer had authority to negotiate on behalf of the prosecution, then a statement made to that officer would be protected

Question 19

What is the difference between California and the FRE in relation to plea offers as an extrinsic evidence policy?

Answer 19

California protects statements that are made to police if the defendant reasonably believes they were part of a bona fide plea negotiation, whereas the FRE doesn’t protect statements made to the police unless the person was induced to reasonably believe the police officer had authority to negotiate on behalf of the prosecution

Question 20

If a police officer says to the defendant that if he comes clean the officer will put in a good word with the DA, would any resulting statement made by the defendant be protected under the extrinsic policy of plea offers?

Answer 20

Only if the defendant believed the police were acting as agents or go-betweens for the prosecution. Statements that are blurted out to police are not protected because it would not be reasonable to think that a cop was trying to negotiate a deal

Question 21

If defendant is charged with murder and he pleads not guilty, and then the prosecution calls a witness that testifies that defendant bashed in the victim’s skull. On cross the defendant’s attorney wants to show that W was charged as an accomplice in the killing but offered to testify against the defendant to get his own charges reduced. Would that be allowed?

Answer 21

Yes, because this rule excludes evidence and plea offers/statements made by the defendant, but does not protect those made by third parties or witnesses

Question 22

If a defendant was charged with first-degree murder, but before trial the defendant tells the prosecution he knew the victim was sleeping with his wife but will accept voluntary manslaughter. Prosecution rejects that and the case goes to trial. At trial the prosecutor tells the jury that the defendant admitted he plotted to kill the victim as revenge for sleeping with his wife. Would this be allowed?

Answer 22

No, because it was a statement made in the course of plea negotiations, which is protected as an extrinsic policy

Question 23

The defendant is charged with larceny for stealing alcohol, and in his case in chief on direct his attorney asks if he took vodka from a store, and the defendant says he never stepped foot in the store, then on cross, the prosecution asks, “did you tell me during our discussion that you left the store with vodka and you forgot to pay for it?“ Would that statement be allowed?

Answer 23

No, because the prosecution is using this to impeach the defendant, and they cannot do that under the extrinsic policy of plea negotiations unless they required the defendant to waive his right not to be impeached during plea negotiations as a condition of entering the plea negotiations. That did not happen here, so it would not be allowed

Question 24

If a defendant was charged with first-degree murder, but then offered to plead to second- degree saying that he bashed the guy’s brains in but was in the heat of things and didn’t plan it. And the prosecution rejects the offer, can they use that statement in court?

Answer 24

No, because both the plea offer and the accompanying statements made in the course of plea negotiations are banned from being admitted under extrinsic policy