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Eighth Circuit Upholds Admission of Defendant’s Proffer Statements at Trial
Aug 2nd, 2013

The relentless efficiency of our criminal justice system depends on frequent and candid plea discussions. That’s why Congress adopted Rule 410 of the Federal Rules of Evidence, which provides that statements made during plea discussions are inadmissible at trial – a rule that courts, applying legislative intent, have extended to the impeachment context. But what if the statements are made as part of an “innocence proffer” rather than an offer to plead guilty? Does the defendant still get the benefit of Rule 410? That’s the intriguing question raised but not decided in United States v. Clemons, issued on July 22, 2013.

Clemons had met with prosecutors prior to trial for an unsuccessful “innocence proffer.” The government claimed the proffer had been conducted under a standard written proffer agreement, which typically provides that a defendant’s statements could not be used in the government’s case in chief, but could be used to impeach him if he testified. No copy of the agreement, however, could be located in either the prosecutor’s or the defense attorney’s files, and the local rules of the trial court required that any agreement between counsel must be in writing to be enforceable. When Clemmons testified in his own defense at trial, the prosecutors sought, over defense counsel’s objection, to impeach him with his proffer statements. The district court ruled that Clemons’ proffer statements would be admissible whether there was a proffer agreement or not, apparently assuming that they would be admissible in the absence of any written agreement specifying the conditions for their use.

Trial counsel never invoked Rule 410 (note that objections to evidentiary rulings must be specific), but appellate counsel did. The Eighth Circuit declined to consider this newly-raised argument, which was not “purely legal,” since “the question of whether the proffer interview was conducted pursuant to plea negotiations would require an analysis of the factual circumstances surrounding the interview.” Moreover, no “manifest injustice” – such as false or misleading evidence in the record – resulted.

The case thus leaves unresolved the question of whether Rule 410 – had defense counsel invoked it – applies to innocence proffers, in which the defendant is not seeking to reduce his potential punishment but rather to eliminate it. Notably, as some courts have pointed out (and implicit in the Court’s decision in Clemons), innocence proffers are often preludes to plea negotiations. In other words, they are part of the de facto process of plea bargaining. It makes no sense, and surely undermines the rationale of Rule 410, to carve out of the plea bargaining process any discussions where the defendant professes innocence. Moreover, the government, with its oft-described “awesome advantages in bargaining power,” knows full well how to obtain a waiver of Rule 410 protections prior to an innocence proffer, and it should not be rewarded for its failure to do so (or its failure to preserve the memorialization of that waiver).

 
 

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JaneAnne Murray is a criminal defense lawyer in Minneapolis.

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