[225 PA. CODE CH. ART. IV]

Inadmissibility of Pleas, Plea Discussions and Related Statements

[33 Pa.B. 2355]

   The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania amend Rule of Evidence 410 and approve the revision of the Comment to Rule of Evidence 410.

   The Committee proposes this amendment and Comment revision to Rule 410 to provide that the rule applies only to criminal cases except for impeachment of credibility in any proceeding.

   The proposal has not been submitted for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Report.

   The text of the proposed rule changes precedes the Report. Additions are shown in bold and deletions are in bold and brackets.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel,

   Richard L. Kearns
   Staff Counsel
   Supreme Court of Pennsylvania
   Committee on Rules of Evidence
   5035 Ritter Road, Suite 800
   Mechanicsburg, PA 17055

no later than June 30, 2003

By the Committee on Rules of Evidence


Annex A



Rule 410.  Inadmissibility of Pleas, Plea Discussions and Related Statements.

   (a)  General rule. Except as otherwise provided in this rule, evidence of the following is not, in any [civil or] criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

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   (3)  any statement made in the course of any proceedings under Rules 409, 414, 424, 311, 313, or 590 of the Pennsylvania Rules of Criminal Procedure, Fed.R.Crim.P. 11, or any comparable rule or provision of law of Pennsylvania or any other jurisdiction regarding the pleas identified in subsections (a)(1) and (a)(2) of this rule; or

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   (b)  [Exception] Exceptions. [A statement made in the course of a plea, proceedings or discussions] This rule does not require the exclusion of a statement identified in subsection (a) [of this rule is admissible]:

   (1)  in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced [by the defendant] and the statement ought in fairness to be considered contemporaneously with it [,] ; or

   (2)  in a criminal proceeding for perjury, false swearing or unsworn falsification to authorities if the statement was made by the defendant, under oath [, and in the presence of counsel.] ; or

   (3)  in any proceeding if offered for the purpose of impeaching credibility.


   [This rule is similar to F.R.E. 410. References to Rules 409, 414, 424, 311, 313, and 590 of the Pennsylvania Rules of Criminal Procedure and the comparable rules or other provisions of Pennsylvania or other jurisdictions have been added. Unlike the federal rule, subsection (b) of the Pennsylvania rule is set forth separately to indicate that it creates an exception applicable to all of subsection (a).

   Pa.R.E. 410 reflects present Pennsylvania law. See Commonwealth v. Jones, 544 A.2d 54 (1988); Commonwealth ex rel. Warner v. Warner, 40 A.2d 886 (Pa. Super. 1945); Pa.R.Crim.P. 311(B), 313(B).

   Pa.R.E. 410 does not prohibit the use of a conviction that results from a plea of nolo contendere, as distinct from the plea itself, to impeach in a later proceeding (subject to Pa.R.E. 609) or to establish an element of a charge in a later administrative proceeding. See Commonwealth v. Snyder, 182 A.2d 495 (1962) (conviction based on nolo contendere plea could be used to impeach witness in later criminal proceeding); Eisenberg v. Commonwealth, Dep't. of Public Welfare, 516 A.2d 333 (Pa. 1986) (conviction based on nolo contendere plea permitted to establish element of charge in administrative proceeding).

   In addition, Pa.R.E. 410 does not govern the admissibility of pleas in summary proceedings involving motor vehicle matters, which is addressed in 42 Pa.C.S. § 6142. § 6142 provides:

§ 6142.  Pleas in vehicle matters]

   This rule differs considerably from F.R.E. 410.

   Pa.R.E. 410(a) sets forth the basic rule of exclusion. It is similar to the first sentence of F.R.E. 410, except that the Pennsylvania rule applies only in criminal cases. Citations of applicable Pennsylvania Rules of Criminal Procedure have been added.

   The reason for making evidence of plea discussions and related statements inadmissible, despite its relevance, is to encourage plea bargaining in criminal cases. This is necessary to keep the criminal dockets manageable in many counties. Pa.R.E. 410 complements Pa.R.E. 408, which makes evidence of conduct or statements made in compromise negotiations inadmissible, despite its relevance, in order to encourage the settlement of civil disputes.

   Pa.R.E. 410(a) does not preclude introduction of evidence of a conviction, as distinguished from a plea. For example, a conviction that is based on a plea of nolo contendere may be introduced to impeach the credibility of the person convicted, if the crime involved dishonesty or false statement. See Pa.R.E. 609.

   Pa.R.E. 410(b) sets forth three exceptions to the rule of inadmissibility. The first exception is contained in the federal rule. The second exception expands one that is contained in the federal rule. The third exception is not found in the federal rule.

   Exception (1) is similar to the federal rule. It is based on concepts of equity and completeness. If a party opens the door by introducing one or more statements that were made during the course of plea bargaining, it is only fair to permit other statements to be introduced to rebut them, or place them in proper context. This exception is consistent with, but broader than, Pa.R.E. 106, which applies only to written and recorded statements.

   Exception (2) is broader than the federal rule in that it does not require that a defendant's statement under oath be made in the presence of counsel in order to be admitted in a prosecution for perjury, false swearing, or unsworn falsification to authorities. Under Pennsylvania law, perjury is subject to punishment, whether or not a lawyer is present.

   Exception (3) allows a defendant's statement, whether or not under oath, to be offered to impeach credibility, if the defendant testifies inconsistently in subsequent litigation, civil or criminal. The reason for this exception is to discourage the commission of perjury. Although this exception is not contained in the federal rule, the federal courts will enforce an agreement between the prosecution and the defendant to allow any statement that the defendant makes in the plea bargaining process to be used thereafter to impeach the defendant's credibility. See U.S. v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995).

   A plea of guilty or nolo contendere to a summary offense under The Vehicle Code is made inadmissible in civil cases by statute. 42 Pa.C.S. § 6142 provides:

   Pleas in vehicle matters

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Proposed Amendment to Rule 410 and revision of Comment

   The Committee is proposing an amendment to Rule 410 and comment revision (Inadmissibility of Pleas, Plea Discussions, and Related Statements).

   I.  Introduction

   As part of the continuous monitoring of the Rules of Evidence, the Committee became concerned that a party in any action could testify at odds with testimony in a plea bargain and could not be impeached. Addressing that concern, the Committee is proposing that Rule 410 be amended as follows:

   1.  The first sentence under (a) be changed to omit the words ''civil or.''

   2.  The first sentence in (b) is changed to make clear that the Rule deals with exclusion rather than admissibility of evidence.

   3.  The words ''by the defendant'' are deleted from (b)(1).

   4.  The words ''and in the presence of counsel'' are deleted from (b)(2).

   5.  A new paragraph (3) is added to 410(b) dealing with impeachment.

   II.  Discussion

   The introductory language in (a) is changed to omit the reference to civil actions. Rule 410 thus applies to criminal cases only except as to impeachment under (b)(3).

   The lead in language of Rule 410(b) is changed to be consistent with Rules 403 through 412, all rules of exclusion. Exception (i) has the words ''by the defendant'' deleted. It should make no difference whether the plea bargain statement is introduced by the defendant or some other party.

   Exception (2) has the words ''and in the presence of counsel'' deleted. Perjury is punishable whether or not committed in front of a lawyer.

   Exception (3) is added to discourage perjury so that the statement can be offered to impeach credibility in any proceeding, civil or criminal.

   The Comment is completely revised so as to reflect the amendments and to describe the reasoning behind the amendments.

[Pa.B. Doc. No. 03-913. Filed for public inspection May 16, 2003, 9:00 a.m.]

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