Alaska Comm. R. Evid. 410
Rule 410 is modeled on former rule 11(e) (6) of the Alaska Rules of Criminal Procedure, which is superseded by this rule. It differs in substantial respects from its federal counterpart. The basic goals of the rule are two:
To foster negotiations the rule provides that nothing that is said during plea bargaining may be used against the accused in any proceeding, whether criminal, civil or administrative. Thus, the accused is free to discuss the case without resort to hypothetical statements of fact and without fear that a slip of the tongue may be devastating at a later trial or other proceeding.
To insure fair treatment for defendants whose pleas are entered and later withdrawn or overturned, this rule provides that the slate should be wiped clean and that no part of the plea process can be used for impeachment or any purpose against the defendant in subsequent proceedings (unless made in court, and they are voluntary and reliable) or in a perjury prosecution. This is in sharp contrast to Federal Rule 410. As amended in December, 1975 by the Congress, the Federal Rule provides that a statement made in connection with a plea "is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel." Alaska Rule 410 offers defendants greater protection: when a plea is withdrawn or otherwise set aside, no use shall be made on the merits of a subsequent case of any statement made in connection with a plea, even though that statement may have been made in court, under oath and with the advice of counsel. However, limited impeachment use is recognized.
Note, however, that this rule does not prohibit admission of statements made by the defendant during the plea process at a hearing on defendant's motion to withdraw a plea. In this situation the statements are subject only to the requirement of relevance.
It is important to observe that leave to withdraw a guilty or nolo contendere plea, once accepted, is not a matter of right; the burden is on the defendant to convince the court that withdrawal of a plea should be permitted in the court's discretion upon grounds set forth in Alaska R. Crim. P. 32(d). The most common ground for withdrawal is that the plea was involuntarily made. Clearly, when the plea was involuntarily made, statements made in connection with it are likely to be unreliable as well; due process would probably require the suppression of both plea and statements.
This rule admits statements found to be both voluntary and reliable that are made in court. Such statements should be very useful for impeachment purposes and are worthy of consideration by a trier of fact considering the credibility of a witness.
In deciding whether or not a statement made in connection with a plea in court is voluntary, the court will consider many of the same questions that arise with respect to confessions. In determining whether the plea statements are reliable, the court must keep in mind that the traditional colloquy between court and defendant is not without its problems, since the defendant is attempting to preserve a bargain in many instances. Hence, even though the defendant may be under oath and uncoerced in any constitutional sense, he is under great pressure to conform his answers to the plea agreed to, in order to satisfy the judge that "there is a reasonable basis for the plea" under Alaska R. Crim. P. 11(f). Such statements by the defendant are neither clarified by defense counsel nor qualified by the defendant.
At first blush it may appear that this rule is inconsistent with Rule 408 with respect to the use of statements made during bargaining for impeachment purposes. But the inconsistency is more apparent than real. In both rules, statements made during private bargaining sessions are not admissible for impeachment purposes. This rule reflects the fact that statements made in court can be especially reliable, especially with the safeguards provided herein. No such in-court procedure exists in most civil cases. In both civil and criminal cases parties should be able to negotiate freely without fear that a slip of the tongue will be unfairly damaging should no bargain be made. But Rule 410 adopts the view that once the informal bargaining is over and the solemn procedure of pleading in court begins, it is both fair and wise to hold a criminal defendant responsible for statements made to the court when the defendant takes a different position later and the plea statements are used for impeachment.
To provide balance, statements made by the prosecutor during the bargaining process are not admissible against the government in any proceeding, except that the defendant may use the prosecutor's statements as evidence in a hearing to enforce a plea agreement see generally Santobello v. New York, 404 U.S. 257, 30 L.Ed. 2d 427 (1971) or to set aside a plea or judgment. In most common law jurisdictions this rule might not be necessary, because statements by an agent of a party would not be admissible against the party unless the agent were specifically authorized to make such statements; the prosecutor may not be so authorized. But under Rule 801(d) (2) (D) the admissibility of agents' statements is expanded. Rule 410 makes it clear that the prosecutor is as free to negotiate without watching for every slip of the tongue as the defendant is. Nothing in this section prohibits the introduction of statements made by a prosecutor during plea bargaining in a disciplinary action against the prosecutor, or even in a criminal action against the prosecutor. The prosecutor who abuses the public trust is not protected by this Rule.
Statements made by defense counsel on behalf of an accused can be used against counsel in a subsequent civil case or disbarment proceeding, since the rule is not designed to protect from disclosure malpractice or ethical violations.
Nothing in this rule makes nolo contendere pleas admissible as admissions. But Rule 609 does make certain nolo contendere pleas admissible for impeachment purposes.
Alaska Comm. R. Evid. 410