Rule 410  Inadmissibility of pleas, plea
discussions, and related statements.  Except as otherwise provided in this
rule, evidence of the following is not, in any civil or criminal proceeding,
admissible against the defendant who made the plea or was a participant in the
plea discussions:



(1)  A plea of guilty which was later withdrawn;



(2)  A plea of nolo contendere;



(3)  Any statement made in the course of any
proceedings under Rule 11 of the Hawaii Rules of Penal Procedure or comparable
federal or state procedure regarding either of the foregoing pleas; or



(4)  Any statements made in the course of plea
discussions with an attorney for the prosecuting authority which do not result
in a plea of guilty or which result in a plea of guilty later withdrawn.



However, such a statement is admissible (i) in
any proceeding wherein another statement made in the course of the same plea or
plea discussions has been introduced and the statement ought in fairness be
considered contemporaneously with it, or (ii) in a criminal proceeding for
perjury or false statement if the statement was made by the defendant under
oath, on the record and in the presence of counsel. [L 1980, c 164, pt of §1]



 



RULE 410 COMMENTARY



 



  This rule is similar to Fed. R. Evid. 410.  It
substitutes "Hawaii Rules of Penal Procedure or comparable federal or
state procedure" in paragraph (3) for the federal language, "Federal
Rules of Criminal Procedure or comparable state procedure."  The intent of
both rules is the same.



  Fed. R. Evid. 410 was amended in 1979 to clarify the scope of
the exclusion, particularly in regard to plea offers and plea discussions.  The
intent of the rule is "the promotion of disposition of criminal cases by
compromise."  See the Advisory Committee's Note to Fed. R. Evid. 410;
compare Rule 408 supra.  Under the original federal formulation of this rule,
however, some federal courts excluded statements of defendants who offered
pleas to law enforcement officers, see, e.g., United States v. Herman, 544 F.2d
791 (5th Cir. 1977).  This rule conforms to the amended federal rule in that
plea offers or discussions are excluded only if made in the course of Rule 11
proceedings or in discussions with the prosecuting attorney.  Statements made
to law enforcement officers should be assessed, not under this rule, but under
the body of law dealing with police interrogation, see, e.g., State v.
Santiago, 53 H. 254, 492 P.2d 657 (1971).



 



Case Notes



 



  Defendant's statements were inadmissible because defendant
was a participant in plea discussions.  70 H. 46, 760 P.2d 670.