2.10Plea Discussions

“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:

(1) a guilty plea that was later withdrawn or vacated;

(2) a nolo contendere plea — except that, to the extent that evidence of a guilty plea would be admissible, evidence of a nolo contendere plea to a criminal charge may be admitted in a civil proceeding to defend against a claim asserted by the person who entered the plea;

(3) a statement made during a proceeding on either of those pleas under MCR 6.302 or MCR 6.310, a comparable state procedure, or Fed R Crim P 11; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn or vacated guilty plea.” MRE 410(a).

However, the court may admit a statement described in MRE 410(a)(3) or MRE 410(a)(4) “(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together” or “(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.” MRE 410(b).

A defendant may waive the protections provided by MRE 410, “as long as they are appropriately advised and as long as the statements admitted into evidence are voluntarily, knowingly, and understandingly made.” People v Stevens, 461 Mich 655, 668-669 (2000). If a defendant injects the issue, he or she may not later claim reversible error based on the prosecutor’s further questioning about the subject. People v Knight, 122 Mich App 584, 593 (1983).

Applicability. “MRE 410 applies when (1) the defendant has an actual subjective expectation to negotiate a plea at the time of the discussion, and (2) that expectation is reasonable given the totality of the objective circumstances.” People v Smart, 304 Mich App 244, 249 (2014) (quotation marks and citation omitted). “[MRE 410(a)(4)¹] does not require that a statement made during plea discussions be made in the presence of an attorney for the prosecuting authority. It only requires that the defendant’s statement be made [‘during plea discussions’] with [the] prosecuting attorney.” People v Smart, 497 Mich 950 (2015) (overruling the statement in People v Hannold, 217 Mich App 382, 391 (1996), that an attorney for the prosecutor must be present). “Under such circumstances, it is helpful to examine whether the discussions with other persons occurred at the direction of a lawyer for the prosecuting authority.” People v Cowhy, 330 Mich App 452, 463 (2019).

Waiver. While MRE 410(a)(1) “protects a defendant who pleads guilty but later decides to withdraw that guilty plea,” this protection “can be waived.” People v Gash, ___ Mich App ___, ___ (2024). In Gash, “[d]efendant signed a special consideration agreement with the prosecution in which he agreed to plead guilty in exchange for a lesser sentence.” Id. at ___. “Under the language of the agreement, defendant consented to statements he made during his guilty plea being used against him in future proceedings, unequivocally waiving the protections afforded to him by MRE 410(a)(1).” Gash, ___ Mich App at ___. Accordingly, “after defendant withdrew his guilty plea and proceeded to trial, MRE 410(a)(1) no longer constrained the prosecution from bringing up defendant’s guilty plea during trial.” Gash, ___ Mich App at ___ (holding that “[i]t was thus reasonable for defense counsel to address defendant’s guilty plea before the prosecution could” because it “allowed the defense to get ahead of the issue”).

Statements made to social worker. Incriminating statements that the defendant made to a social worker in anticipation of sentencing, subsequent to entering a plea but prior to withdrawing it, were not subject to MRE 410 because defendant “did not have a subjective expectation to negotiate a plea, and even if he did, his expectation was not reasonable under the totality of the circumstances” because “the plea agreement had already been entered and [defendant] had pleaded guilty pursuant to it.” Cowhy, 330 Mich App at 465-466 (defendant’s “expectation at the time he made the statements was to receive a more lenient sentence, not to receive a better plea agreement with the prosecution”; although not barred from admission under MRE 410, the Court held that the statements were protected by the psychologist-patient privilege²).

Statements made at sentencing. Inculpatory statements made by the defendant at sentencing and in a presentence-investigation report after entering a plea but prior to withdrawing it were not subject to MRE 410. People v Erickson, 339 Mich App 309, 319 (2021). There was no indication that the defendant believed that he was actively negotiating a plea agreement at the time the statements were made because the plea agreement had already been finalized and he offered the statements to request leniency in sentencing. Id at 319. “[E]ven if defendant did believe he was still negotiating the plea, that belief was not objectively reasonable given the totality of the circumstances . . . [because] the terms of the plea agreement were set forth at the plea hearing, and the court made very clear to defendant that the plea did not, in fact, encompass sentencing.” Id. at 319-320.

Affidavit to withdraw plea. Where the record did not support under the totality of the circumstances that the defendant had a subjective expectation to negotiate a plea when he “submitted his affidavit [containing inculpatory statements] in support of withdrawing his guilty plea,” he was not engaged in plea discussions “with a lawyer for the prosecuting authority” and thus, his inculpatory statements were not precluded by MRE 410. Cowhy, 330 Mich App at 466; MRE 410(a)(4).³

Statements made to defendant’s attorney. The defendant’s inculpatory statements made to his attorney before he entered into a plea agreement “were used to inform [the attorney’s] advice to [the defendant] regarding the plea.” Cowhy, 330 Mich App at 467. Therefore, the statements were not protected by MRE 410 because they “were not made in the course of plea negotiations with a lawyer for the prosecuting authority or at the direction of a lawyer for the prosecuting authority” and “there [was] nothing in the record to suggest that when [defendant] made the statements he had a subjective expectation to negotiate a plea with the prosecuting authority or that such an expectation would be reasonable under the totality of the circumstances.” Cowhy, 330 Mich App at 467 (although defendant’s statements to his attorney were not barred from admission under MRE 410, the Court held that they were protected by the attorney-client privilege⁴).