The Best Offense is a Good Defense: Why Criminal Defendants' Nolo Contendere Pleas Should be Inadmissible Against Them When They Become Civil Plaintiffs

Abstract

All federal courts (and most state courts) agree that when a criminal defendant pleads nolo contendere and subsequently becomes a civil defendant, his plea is inadmissible against him pursuant to Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f). Conversely, courts are sharply divided over whether this same criminal defendant would be entitled to the protection of the Federal Rules (and corresponding state codes) if he became the plaintiff in a subsequent civil proceeding.

This article argues that courts holding that Federal Rule of Evidence 410, Federal Rule of Criminal Procedure 11(f), and corresponding state codes do not protect civil plaintiffs who previously pleaded nolo contendere are doing so based on blatant disregard for the 1979 amendments to the Federal Rules. Worse, even after ignoring these amendments, these courts still arrive at this conclusion only by contorting the Rules until their substantive protections are lost amid semantic gymnastics employed for the specious argument that evidence introduced for the benefit of one party is somehow not introduced against the other party. Further, in creating this dichotomy, these courts create potentially anomalous results such that attempts by non-pleading parties to admit prior nolo contendere pleas for the same purpose are either covered or not covered by the Rules based upon arbitrary reasons.

Keywords: nolo contendere pleas, plea bargaining, evidence, criminal procedure

JEL Classification: K10, K14, K19, K40, K42