Evidence Outline - Professor Tilly - Campbell Law - Part 19

B. Exceptions. (If subject to exception) can be admitted:

1. In any proceeding in which another statement made during the same plea or plea discussion has been introduced, if in fairness the statements ought to be considered together (comparable to Rule of Completeness); 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.
   • NO IMPEACHMENT EXCEPTION
   • Rule does not apply to statements made during guilty/nolo plea discussions that are not withdrawn
   • Rule does not apply to statements offered against a DIFFERENT defendant

Robert Kraft is accused of conspiracy to engage in human trafficking, a federal offense. The AUSA meets with Kraft and his lawyers before trial. In the discussions, Kraft acknowledges that he paid for sex acts on at least three different occasions at the Orchids of Asia Day Spa. Prosecutors offer Kraft a plea deal whereby he would admit to a lesser charge of engaging in trafficking activities but nothing less. Kraft rejects the deal. A jury later convicts Kraft on all charges. At the sentencing hearing, the AUSA seeks to offer Kraft’s statement made during plea discussions about the number of acts he engaged in. Kraft’s lawyers object to hearsay and inadmissible statements made during a plea negotiation.

• Sentencing hearing → rules of evidence don’t apply

Jack Skaggs is a lawyer in Austin. After ten years he had still not made partner. Disgruntled, Skaggs begins turning in expense reports based on “client dinners and development” which, in fact, never occurred. Skaggs received reimbursements in the U.S. mail of over $15,000. • The firm’s CPA begins scrutinizing all expense reports and suspects Skaggs of embezzlement. He contacts the FBI which confirms. • Skaggs and his lawyer meet with federal prosecutors. In the meeting they discuss an agreement whereby Skaggs will plead guilty to one but not three counts of federal mail fraud. During the meeting, Skaggs says, “Look, I filed four false reports each year; but the firm undercut my salary and didn’t promote me. It’s not like I didn’t have a reason.”

• At the Rule 11 plea hearing, prosecutors offer Skaggs’ statement. Defense counsel objects as inadmissible hearsay and FRE 410. Admissible?
  • Rule 11 plea hearing → not subject to rules of evidence
• After the plea is rejected by the judge, prosecutors offer the statement at trial. Defense counsel objects as inadmissible hearsay and FRE 410.
  • Rule applies → inadmissible

FRE 411. Liability Insurance. Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

Negligence action by plaintiff against the owner of a grocery store. P claims injuries from falling on the slippery floor of the store’s produce department. To prove D negligently permitted the store to become slippery, P wishes to offer evidence that the D was covered by a slip & fall policy of insurance. Defendant objects. How should the court rule?

• Not BER b/c not contents & not a controlling issue → Inadmissible under FRE 411?
  1. Yes

Same case. D claims the produce section is stocked and maintained by a separate company hired as an independent contractor. P offers evidence on cross examination of the store manager that D maintains a liability policy covering accidents in the produce section, including slippery floors. D objects.

• Ownership/control in dispute → admissible b/c other purpose