Federal Evidence Review

A consensus has emerged among the circuits that prior inconsistent statements at a plea hearing pursuant to Fed. R. Crim. P. 11 may be admitted and considered as substantive evidence under FRE 801(d)(1)(A), in United States v. Cervantes, 646 F.3d 1054, 1060 (8th Cir. 2011) (No. 10-3544), and other cases.

FRE 801(d)(1)(A) allows for admission of a prior inconsistent statement which “was given under oath subject to the penalty of perjury at a” prior hearing, when the declarant “is subject to cross-examination concerning the statement.” The prior inconsistent statement may be considered for both impeachment and as substantive evidence. See generally Admitting Prior Inconsistent Statements As Substantive Evidence Outside Of FRE 801(d)(1).

Before a plea agreement is accepted by a court, certain constitutional and other requirements must be satisfied, as set forth in Fed. R. Crim. P. 11. Typically, a negotiated plea agreement is presented to the court. During the plea hearing, “the defendant may be placed under oath, and the court must address the defendant personally in open court.” Rule 11(b)(1). The court informs the defendant of his rights (such as the “right to plead not guilty” and put the government to its proof and the right to confront witnesses), the maximum penalties, and the nature of the charge, as enumerated in Rule 11(b)(1). Before accepting any plea, the court must “determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).” Rule 11(b)(2). The court also determines that there is an adequate factual basis for the plea. To what extent can the statements in the plea agreement and at the plea hearing be admitted as prior inconsistent statements under FRE 801(d)(1)(A)?

Each circuit to have addressed this issue has admitted a prior inconsistent statement made in a plea agreement or at a plea hearing where the requirements of the rule have been met:

• First Circuit: United States v. Lopez, 944 F.2d 33, 41 (1st Cir. 1991) (admitting “pretrial statement that [defendant] Lopez knew there was heroin in her apartment” which was made under oath at the declarant’s plea hearing) (footnote omitted).
• Fifth Circuit: United States v. Cisneros-Gutierrez,  517 F.3d 751, 758-59 (5th Cir. 2008) (admitting a redacted version of the plea agreement factual basis from the defendant’s brother as substantive evidence as a prior inconsistent statement under FRE 801(d)(1)(A); “Put more directly, Edgardo’s testimony at the plea hearing is a sworn statement that the facts in the factual resume are true; thus, he made a sworn statement that it is true that he agrees Defendant delivered the drugs.”) (footnote omitted)
• Sixth Circuit: United States v. Ricketts, 317 F.3d 540, 544 (6th Cir. 2003) (“Several out-of-court statements made by McKinney were made under oath and hence could be used as substantive evidence. Fed. R. Evid. 801(d)(1)(A)” including “McKinney's sworn statements at his guilty plea hearing….”)
• Seventh Circuit: United States v. Meza-Urtado, 351 F.3d 301, 303-04 (7th Cir. 2003) (after a cooperating witness “testified inconsistent with his plea statements,” the trial court “permitted the government to read the plea colloquy to the jury,” under FRE 801(d)(1)(A); “Because these sworn statements were clearly inconsistent with his trial testimony, they were properly received as substantive evidence.”)
• Eighth Circuit: United States v. Cervantes, 646 F.3d 1054, 1060 (8th Cir. 2011) (In conspiracy to manufacture more than 1000 marijuana plants trial, “[t]he district court properly admitted Luis Rincon's adopted plea colloquy as substantive evidence under Rule 801(d)(1)(A) as it was inconsistent with his testimony at trial.”)
• Ninth Circuit: United States v. Tran, 568 F.3d 1156, 1162 (9th Cir. 2009) (in marijuana distribution prosecution, admitting co-defendant’s redacted plea agreement under FRE 801(d)(1)(A) as “[t]he portion of Nguyen's plea agreement that was admitted into evidence was inconsistent with Nguyen's reluctant and evasive in-court testimony.”)
• Tenth Circuit: United States v. Knox, 124 F.3d 1360, 1364 (10th Cir. 1997) (“change of plea statements are admissible if inconsistent with [cooperating witnesses] Brown's and Cartwright's testimony at Knox's trial” under FRE 801(d)(1)(A))

These cases establish that as long as the requirements of FRE 801(d)(1)(A) are met, prior inconsistent statements of a witness at a plea hearing or in a plea agreement may be admitted as substantive evidence.

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