Colin Miller, of EvidenceProf Blog fame, sent me a link to an article he's written espousing the virtues of allowing a rejected plea agreement to be introduced by the defendant as evidence tending to prove innocence. It's an interesting article, but I must disagree with its conclusion.
The introduction of a plea offer is something which might best be called perceptual evidence. It wouldn't prove or disprove a physical element of a charged crime. Instead, it is meant to change how the finder of fact perceives the evidence. This is not necessarily a bad thing. Perceptual evidence is used in court in almost every trial. Most often we see this when evidence is introduced to show a witness' bias or when the prior convictions of a witness are introduced to show a lack of moral reliability. A less common example is one that Professor Miller offers: the introduction of the fact that a defendant refused immunity offered by the prosecution. None of these are actually a piece of positive evidence proving or disproving a physical element of the charged crime.
Perceptual evidence is per force a tricky area. It is the introduction of bias into the trial. In fact, the examples above all play toward a bias which has been approved by our jurisprudence. We conclude that a person who has been given a benefit from the prosecution in exchange for his testimony is, to some extent, likely to fabricate testimony against the defendant. We conclude that someone who has been convicted of a felony or misdemeanor involving “moral turpitude” is more likely to lie during his testimony. Courts have concluded that the fact that a defendant turned down an offer of immunity is indicative of a belief that he is innocent. All of these are officially sanctioned biases which are introduced to influence the perception of other evidence which has been introduced.
On the other hand, there is plenty of perceptual evidence which is out of bounds. Of course, blatant plays toward prejudices involving race, ethnicity, nationality, religion, &cetera are off limits. However, there are also any number of evidential items which are off limits due to judicial precedent. Neither the prosecution nor the defense can introduce the results of a polygraph test. The prosecution cannot introduce the defendants 10 prior convictions for the same type of offense; under Virginia law the prosecutor could ask a defendant who has chosen to testify how many felonies and moral turpitude misdemeanors he has been convicted of, but no questions beyond the number are allowed.
So, how do we determine if a defendant should be allowed to introduce the perceptual evidence of a rejected plea offer to the finder of fact during a trial? Personally, I see three obstacles. The first is that the plea offer is hearsay. The second is whether the plea offer is relevant. The third is the probative/prejudicial test.
Continued in Tuesday 2 p.m. post.