Colo. R. Evid. 410
Except as otherwise provided by statutes of the State of Colorado, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in any connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer. This rule shall not apply to the introduction of voluntary and reliable statements made in court on the record in connection with any of the foregoing pleas or offers where offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement.
This rule shall be superseded by any amendment to the Colorado Rules of Criminal Procedure which is inconsistent with this rule, and which takes effect after the effective date of these Colorado Rules of Evidence.
CRE 410
Committee Comment
The Committee wishes to advise the Court of a proposed Federal Amendment to Rule 410 as follows:
Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
Except as otherwise provided in this rule, evidence of the following is not admissible against the person who made the plea or was a party to the discussions, in any civil or criminal proceeding:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) plea discussions with the attorney for the government, concerning the crime charged or any other crime, which do not result in a plea of guilty or which result in a plea of guilty later withdrawn; or
(4) statements made in the course of or as a consequence of such pleas or plea discussions.
However, such a statement is admissible in any proceeding wherein statements made in the course of or as a consequence of the same plea or plea discussions have been introduced, or 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.
Fre Advisory Committee Note: Present Rule 410 conforms to Rule 11(e)(6) of the Federal Rules of Criminal Procedure. A proposed amendment to Rule 11(e)(6) would clarify the circumstances in which pleas, plea discussions and related statements are inadmissible in evidence; see Advisory Committee Note thereto. The amendment proposed above would make comparable changes in Rule 410.
Annotation Law reviews. For article, "Hearsay in Criminal Cases Under the Colorado Rules of Evidence: An Overview", see 50 U. Colo. L. Rev. 277 (1979). Application of this rule, when read in light of Crim. P. 11 (e)(6) and § 16-7-303 , requires the exclusion of evidence of statements made by defendant during plea bargaining process only in regard to plea discussions with the attorney for the government. People v. Rollins, 759 P.2d 816 (Colo. App. 1988). While the prosecuting attorney need not be physically present, his or her knowledge and consent to be bound by the plea discussions is an essential prerequisite to application of the rule. People v. Martinez, 36 P.3d 154 (Colo. App. 2001). Defendant's unilateral choice to provide statements to law enforcement officers unauthorized to conduct plea negotiations failed to transform the statements into disclosures made "in any connection with" any offers to plead guilty. Such statements, therefore, did not fall within the ambit of this rule. People v. Martinez, 36 P.3d 154 (Colo. App. 2001). Since this rule is substantially the same as Fed. R. Evid. 410, absent case authority in Colorado, federal cases on issue of whether a statement by defendant constitutes an inadmissable statement during plea negotiations are instructive in interpretations of this rule. People v. Rollins, 759 P.2d 816 (Colo. App. 1988). "Conviction" as used in the habitual offender statute, includes a judgment of conviction entered upon a plea of nolo contendere. People v. Windsor, 876 P.2d 55 (Colo. App. 1993). In the context of the bail bond statute, a plea of guilty, when accepted by the court which grants a deferred judgment and sentence, constitutes a "conviction". Evidence of the guilty plea is no longer admissible, however, after successful completion of the period of the deferred sentence. Hafelfinger v. District Court, 674 P.2d 375 (Colo. 1984). A letter from the defendant to the county court judge constitutes an offer to plead nolo contendere to the crime charged and, therefore, should not have been admitted where the letter stated that the defendant did not want to contest the charges against him, that he did not wish to remain free, and that he hoped the court would exercise mercy and send him to a minimum security facility. People v. Flores, 902 P.2d 417 (Colo. App. 1994). Where defendant was the first to refer to his initial insanity plea, he could not claim error when the court allowed the prosecution to explore his insanity plea. People v. Kruse, 819 P.2d 548 (Colo. App. 1991). This rule does not bar the introduction, for impeachment purposes, of voluntary statements made to prosecutors after the acceptance of a plea agreement and the plea is subsequently withdrawn. People v. Butler, 929 P.2d 36 (Colo. App. 1996). Sua sponte hearing on voluntariness not required, if there is no basis in the record for concluding the voluntariness of statements might be challenged. People v. Copenhaver, 21 P.3d 413 (Colo. App. 2000). Statements in the court file, including defendant's written statement in support of a rejected plea agreement, are "on the record" and may be used for impeachment purposes. People v. Copenhaver, 21 P.3d 413 (Colo. App. 2000). Defendant's statements made during polygraph not admissible under this rule when polygraph conducted as part of plea negotiation. Here, prosecution asked defendant to take a polygraph to see "what type of plea may or may not be made", thus constituting part of a plea negotiation; therefore, defendant is entitled to the implied promise of this rule. People v. Garcia, 169 P.3d 223 (Colo. App. 2007). Statements defendant made in a federal case in accepting guilty plea and not in allocution for purposes of sentencing are admissible against the defendant in a state court case. People v. Rabes, 258 P.3d 937 (Colo. App. 2010).