“In light of this data, evidence of a favorable plea offer by a prosecutor has significant probative value for establishing the weakness of the prosecution's case. While other factors may play a role in a prosecutor offering a favorable plea bargain to a defendant, the above data reveal that nearly every prosecutor is influenced by the weakness of the prosecution's case in making a plea offer. And, “if we assume that prosecutors are motivated by a desire to avoid acquittals, they are likely to adjust their plea offers so as to create the largest differentials in cases where the government evidence is weakest.” Put another way, “the more likely it is that a defendant will be acquitted, the more attractive the plea offer that he will receive.”The flaw in this is that it conflates weakness of the case with innocence. If the favorability of the plea agreement tracked with the prosecutor's belief in the probability of the defendant's innocence - the better the plea offer the stronger the prosecutor's belief that the defendant could be innocent – then a favorable plea offer would clearly be a statement contrary to the Commonwealth's assertion of guilt and should be an exception to the hearsay rule. If Brady and its progeny are stretched a little they could require the admission of a prosecutor's admission that a defendant might be innocent. However, weakness of a case rarely has to do with a prosecutor's belief that the defendant is innocent.
My experience, and I daresay that most prosecutors would back me up on this, is that weakness of a case almost never comes from the thought that the defendant might be innocent. Most of the cases in which there is a question on my office's part are flushed out before I get assigned to prosecute the felony. In my case the primary cause for concern that the case is weak is a worry that I will not be able to get witnesses to court. The clerk who was robbed while working the late shift no longer works at the eZee Stop. The Officer who took the confession no longer works in the police department. The co-defendant who identifies the defendant is serving time in another State which may not want to send him back to be a witness. There are also plenty of other reasons for concern over a case. Admissibility of evidence may be a concern, particularly when there is a shift in constitutional precedent such as after Arizona v. Gant. There may be a concern that witnesses (momma, mamaw) may refuse to testify or develop memory loss because they don't want “little Bobby” to go to jail. Every honest prosecutor will tell you he's lost track of the number of times he's gotten a file in his hands which leaves him no doubt as to whether the defendant is guilty but boatloads of doubt as to whether he can prove that guilt.
Why is all this important? Because, a statement that a prosecutor believes a defendant is quite possibly innocent is a statement countering the prosecution's assertion at trial that the defendant is guilty. However, a statement that the case is weak is a statement of the difficulty of putting the case together, not a comment on innocence. Therefore, the offered plea, as merely a comment on the difficulty of putting the case together, should not be admitted as an exception to the hearsay rule.
Even assuming the evidence makes it past the hearsay exception, it must pass the basic test that all evidence must: is it relevant? As the plea offer is about the weakness of the prosecutor's case and not about the innocence of the defendant it is not. The difficulty which the prosecutor went through in getting his evidence together (or failing to get certain parts) is not a concern of the fact finder. The fact finder is to review the evidence in front of him/them and make a decision based upon that evidence. The fact that a prosecutor had difficulty putting the case together has no bearing on that decision. The fact that a prosecutor was unable to present some piece of evidence he would have liked to present is only relevant insomuch as it may leave a vital element of the crime unproven and that will play itself out in the trial without the introduction of the rejected plea agreement.
Continued in Wednesday 2 p.m. post.