TITLE FOUR — RELEVANCY AND ITS LIMITS
Rule 410. Pleas, Offers of Pleas, and Related Statements
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:
a plea of guilty or a plea of nolo contendere that was later withdrawn;
an admission to sufficient facts to warrant a finding of guilty, tendered under Rid. R. Crim. P. 12(a)(2), that was later withdrawn;
an offer to plead guilty or nolo contendere, or an offer to admit to sufficient facts, as to the crime charged or any other crime, whether or not the offer was accepted; and
a statement made in connection with, and relevant to, any plea or offer described in Rule 410(1)(a) through (c).
Exception. The court may admit a statement described in Rule 410(1)(d)—a statement made in connection with, and relevant to, a plea or an offer—in a criminal proceeding for perjury under R.C.C. § 2.10 if the defendant made the statement under oath, on the record, and in the presence of counsel, if any. This exception extends to no other proceeding and to no other item described in Rule 410(1).
Plea of Nolo Contendere Accepted and Not Withdrawn. A plea of nolo contendere which the court accepted and which was not withdrawn is not admissible in a civil action, and is not admissible in a criminal case other than the one in which it was entered, to prove the conduct underlying the charge to which it was entered. A judgment entered upon such a plea is not within the exception for a judgment of a previous conviction stated in Rule 803(5)(a), and shall not be received to prove a fact essential to that judgment. This subdivision does not affect the use of the judgment where a statute or a rule attaches a consequence to the fact of conviction, nor its use for impeachment under Rule 609.
Plea of Guilty Accepted and Not Withdrawn. A plea of guilty which the court accepted and which was not withdrawn is not within Rule 410(1). The resulting judgment of conviction is admissible to the extent Rule 803(5) permits, and the plea itself and the defendant’s statements in the colloquy conducted under Rid. R. Crim. P. 12(c)(3) or 12(d)(3) are admissible as the statements of a party, subject to Rules 403 and 404.
Who May Invoke. The protection of Rule 410(1) belongs to the defendant who made the plea or who participated in the plea discussions, and:
it is not lost because the offer was made to a person other than the prosecutor, provided the requirements of Rule 410(6) are met;
evidence of a co-defendant’s plea, offer, or related statement is not admissible against another defendant to prove that other defendant’s guilt, and where a co-defendant who has pleaded testifies for the State, the agreement and its use are governed by Rule 1102; and
a defendant may offer evidence of the defendant’s own plea, offer, or related statement, and by doing so waives the protection of Rule 410(1) as to the whole of the plea or offer so far as Rule 106(1) requires.
Plea Discussions. A statement is made in connection with a plea or an offer within Rule 410(1)(d) only where:
the defendant exhibited an actual subjective expectation to negotiate a plea at the time the statement was made; and
that expectation was reasonable under the circumstances then existing, having regard to whether the person to whom the statement was made held authority to charge, to reduce a charge, or to bind the State, and whether that person invited or entertained the discussion.
A statement made to a peace officer who holds no such authority is not within Rule 410(1)(d) unless the officer was expressly authorized by the prosecutor to conduct the discussion. A statement made in the proceeding communications during a plea proceeding held under Rid. R. Crim. P. 12 is within Rule 410(1)(d).
Statements Not Within This Rule. Rule 410(1) does not reach:
a statement made after the plea discussions have concluded and the negotiation has been abandoned by both sides;
a statement made in the course of an investigation, an interrogation, or a proffer that is not directed to the disposition of a charge by plea;
a statement whose exclusion is sought by a person who was not a participant in the plea discussions; or
evidence of the fact that a defendant was charged, arraigned, or held, as distinct from evidence of a plea, an offer, or a related statement.
Waiver. A defendant may agree that a statement made in plea discussions may be used against the defendant, but only where the agreement:
is in writing, states with particularity the statements and the uses to which it extends, and is signed by the defendant;
is entered into with the advice of counsel, or after a waiver of counsel accepted by the court under Rid. R. Crim. P. 8.1;
is filed with the court and disclosed on the record; and
is found by the court to have been made knowingly and voluntarily.
A waiver under this subdivision does not authorize the use of the statement in the State’s case in chief. It extends no further than impeachment of the defendant’s testimony and rebuttal of evidence or argument offered by the defendant that is inconsistent with the statement. A waiver is of no effect as to a plea or offer described in Rule 410(1)(a) through (c).
Withdrawn Notices and Analogous Matter. Evidence of an intention to rely upon a defense of alibi, later withdrawn, and of statements made in connection with that intention, is inadmissible as Rid. R. Crim. P. 14(b)(1)(F) provides. A notice given under Rule 404(1)(i) or Rule 404(2)(d) and thereafter withdrawn, and a statement made in connection with it, are inadmissible against the party who gave the notice, in a civil or a criminal case, to prove the matter stated.
Procedure.
A party intending to offer evidence within Rule 410(1) shall proceed by motion in limine under Rule 103(6). The motion shall identify the plea, offer, or statement, the exception relied upon, and the proceeding in which the evidence is to be used.
The court shall determine the preliminary questions arising under this Rule as Rule 104(1) provides, and shall hear the matter out of the hearing of a jury where a jury sits.
The record of a plea proceeding maintained under Rid. R. Crim. P. 12(a)(1) may be examined by the court in the proceeding communications for the purpose of the ruling. Neither that record nor the material of the plea discussions shall be filed unless and until the court has ruled the material admissible, and Rule 403(9) governs the handling of it.
The court shall state its findings and the ground of its ruling on the record.
Limiting Instruction. Where a statement is admitted under Rule 410(2), the court shall on timely request instruct the fact finder that the statement is received solely upon the charge of perjury, and that it may not be considered as evidence of guilt of any other offense or as evidence of the defendant’s character. In a trial without a jury the court shall state the limited purpose on the record.