Rule 410 Inadmissibility of pleas, plea discussions, and related statements. 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:

(1) A plea of guilty which was later withdrawn;

(2) A plea of nolo contendere;

(3) Any statement made in the course of any proceedings under Rule 11 of the Hawaii Rules of Penal Procedure or comparable federal or state procedure regarding either of the foregoing pleas; or

(4) Any statements made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) 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. [L 1980, c 164, pt of 1]

 

RULE 410 COMMENTARY

 

This rule is similar to Fed. R. Evid. 410. It substitutes "Hawaii Rules of Penal Procedure or comparable federal or state procedure" in paragraph (3) for the federal language, "Federal Rules of Criminal Procedure or comparable state procedure." The intent of both rules is the same.

Fed. R. Evid. 410 was amended in 1979 to clarify the scope of the exclusion, particularly in regard to plea offers and plea discussions. The intent of the rule is "the promotion of disposition of criminal cases by compromise." See the Advisory Committee's Note to Fed. R. Evid. 410; compare Rule 408 supra. Under the original federal formulation of this rule, however, some federal courts excluded statements of defendants who offered pleas to law enforcement officers, see, e.g., United States v. Herman, 544 F.2d 791 (5th Cir. 1977). This rule conforms to the amended federal rule in that plea offers or discussions are excluded only if made in the course of Rule 11 proceedings or in discussions with the prosecuting attorney. Statements made to law enforcement officers should be assessed, not under this rule, but under the body of law dealing with police interrogation, see, e.g., State v. Santiago, 53 H. 254, 492 P.2d 657 (1971).

 

Case Notes

 

Defendant's statements were inadmissible because defendant was a participant in plea discussions. 70 H. 46, 760 P.2d 670 (1988).

 

 

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