The 10th affirmed, holding the admission of his statements was not plain error because he'd been warned he could not be immunized from federal charges. Mr. Brown alleged in a § 2255 motion that he received ineffective assistance of counsel in federal court due to the statements' inadmissibility under Federal Rule of Evidence 410, and at the state proffer meeting. The district court rejected the claims on invalid grounds which the government proffered before it and then abandoned on appeal.

The First Circuit held that admitting this letter was reversible error. Technically, Fed.R.Evid. 410 did not apply, because the defendant’s statement was not anticipatory to, or part of, the plea negotiation process. The court concluded that allowing the government to use the statement gave them the benefit of the bargain while depriving the defendant of the benefit of the bargain.

See alsoFed.R.Evid. 410. Speaking for the Court in Barunas, I said:The general purpose of Mil.R.Evid. 410 and its federal civilian counterpart, Fed.R.Evid. 410, is to encourage the flow of information during the plea-bargaining process and the resolution of criminal charges without "full-scale" trials. See United States v. Grant, 622 F.2d [308,] at 313 [(8th Cir. Ark. 1980)]; see generally Santobello v. New York, 404 U.S. 257, 260-61, 92 S. Ct. 495, 497-98, 30 L. Ed. 2d 427 (1971).

Evidence Prof. Blog, 30 January 2009. Professor Miller argues, correctly, that the court was right, but for the wrong reason (under Federal Rule of Evidence 410, as well as the Pennsylvania Rule).I'm writing to add a military nuance.First, under Military Rule of Evidence 410, the Pennsylvania decision would still be correct, but for the wrong reason — or would it?

The First Circuit held that admitting this letter was reversible error. Technically, Fed.R.Evid 410 did not apply, because the defendant’s statement was not anticipatory to, or part of, the plea negotiation process. The court concluded that allowing the government to use the statement gave them the benefit of the bargain while depriving the defendant of the benefit of the bargain.

' But the record supported the judge's subjective-intent conclusion. Although the prosecutor was experienced, he just carelessly came to the conclusion after some inept research that Fed. R. Evid. 410 [prohibiting the admission of statements made during unconsummated plea negotiations] allowed the improper question. The prosecutor's remark during the first trial that he had to "fight and claw to get my case presented fairly," did not mean the government thought it had a weak case and would rather to try the case again.

Trial counsel will undoubtedly will continue to battle over relevance, probative value, cumulative evidence, prejudicial effect and jury confusion until higher courts establish clear precedent. Additional evidentiary issues that courts likely will confront include the admissibility of the DPA as evidence of other crimes, wrongs or acts (Federal Rule of Evidence 404(b)); the inadmissibility of the DPA and the DPA discussions as settlement negotiations (FRE 408(a)); the admissibility of the DPA as a plea agreement versus its inadmissibility as a plea negotiation (FRE 410); and the use of the DPA as impeachment evidence of a criminal conviction (FRE 609(a)(2)). Moreover, even if the court rules the DPA evidence inadmissible as an initial matter, trial counsel will need to shepherd the case in a manner that does not open the door to its introduction.

More importantly, the Eleventh Circuit held that plea negotiations are not privileged from disclosure. Particularly, the Eleventh Circuit held that Federal Rule of Evidence 410 provides no privilege for plea negotiations. The Eleventh Circuit also held that Epstein’s attorneys waived any work product privilege when they voluntarily sent the correspondence at issue to the United States.

More importantly, the Eleventh Circuit held that plea negotiations are not privileged from disclosure. Particularly, the Eleventh Circuit held that Federal Rule of Evidence 410 provides no privilege for plea negotiations. The Eleventh Circuit also held that Epstein’s attorneys waived any work product privilege when they voluntarily sent the correspondence at issue to the United States.

The ever sentient Prof. Colin Miller brings us a good reminder to be careful, at his evidence prof blog.Federal Rule of Evidence 410(a)(4) states as follows:(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:….