Can Plea Negotiations Be Entered Against Me As Evidence?

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Jessica Burke

Jessica Burke is a licensed Vermont attorney and the founder of Burke Law. She obtained her undergraduate degree from Boston College in Political Science, and then received her law degree from Washington & Lee Law School. After law school she worked with several top law firms before settling in Vermont and building her own practice. In addition to being licensed to practice law in the state of Vermont, she also holds a State Bar certification in New Hampshire and Massachusetts, among others. She specializes in criminal defense, including DUI defense, homicides, and sex crimes.

Plea negotiations cannot be entered as evidence against an accused at a jury trial.

Vermont criminal defendants often worry that if they entertain plea offers or counter the prosecutor’s plea offer with their own offer to resolve the case that these negotiations or offers to pled guilty can be used against them as evidence if they ultimately choose to go to a jury trial. The drafters of the rules of criminal procedure realized that if plea negotiations could be used as evidence against a criminal defendant at a jury trial then it would have an obvious chilling effect on use of plea negotiations to resolve criminal cases.

Vermont Rule of Evidence 410 reads as follows:

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant or ward 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(1) a plea of guilty which was later withdrawn;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 Vermont Rules of Criminal Procedure or comparable state or federal procedure regarding either of the foregoing pleas;
(4) any statement 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for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.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; or
(5) in proceedings under Family Court Rule 6(d) any waiver or admission which was later withdrawn, any statements made in the course of proceedings under Family Court Rule 6(d) regarding a waiver or admission which was later withdrawn, or any statement made in the course of discussions with an attorney for the state which do not result in a waiver or admission or which result in a waiver or admission which was later withdrawn.

Vt. R. Evid. 410

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