Statements by a defendant in the course of plea discussions with an attorney (agent) for the prosecuting authority.

In People v Smart, ___ Mich App ___ (#314980. 2/11/2014) the Court of Appeals  affirmed the suppression of certain statements made by the defendant to police as being in the course of plea discussions with an attorney for the prosecuting authority. The Court agreed that the statements by defendant at March 15, 2011, meeting were given “in the course of plea discussions with an attorney for the prosecuting authority” despite the absence of the physical presence of an assistant prosecuting attorney during that meeting.   

MRE 410(4) provides that “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: * * *  (4) Any statement 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for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.”   

MRE 410(4) does not explicitly state that an attorney for the prosecuting authority must be physically present when the statement is made. Rather, under MRE 410(4) statements must be made only “in the course of plea discussions with an attorney for the prosecuting authority.” “In the course of” means “in the progress or process of; during.” See, People v Williams, 288 Mich App 67, 97 (2010), citing Webster's New World Dictionary (2d college ed., 1970). 

It is conceivable that a defendant may speak to persons other than an attorney for the prosecuting authority in the course of plea discussions. Indeed, a defendant may speak to persons, such as police officers, at the direction of an attorney for the prosecuting authority in the course of plea discussions. Because MRE 410 requires that the statement sought to be excluded be made in the course of plea negotiations with an attorney for the prosecuting authority, it would stand to reason that the defendant must still have an actual subjective expectation to negotiate a plea at the time of the discussion and that such expectation be reasonable under the totality of the circumstances. People v Dunn, 446 Mich 409, 415 (1994).  Not every requested or held discussion concerning plea negotiations will necessarily result in a plea deal. And, simply because a defendant seeks to engage in a plea negotiation does not mean that the person to whom he is speaking (a prosecuting attorney or another person) would or must view any discussion with a defendant as a plea negotiation.