Plea Bargaining – Am I Safe When Talking to the District Attorney?

A concern many people who are charged with Colorado crimes is whether they can speak to the DA Prosecutor without hurting their case.

The answer is a law that protects you if you disclose incriminating information to the DA Colorado Rule Of Evidence Rule 410

In a nutshell, Rule 410 provides for a kind of immunity for statements made in plea bargaining meetings with the District Attorney Prosecutor (the DA). The protections afforded by Rule 410 are actually critical to both the Government and the Defendant. Without the protection of Rule 410, plea bargaining, which is essential to the criminal justice system, could not occur.

Only a small percentage of Colorado criminal cases actually go to trial. Rule 410 gives both parties an incentive to plea bargain. It allows lawyers or Defendant’s representing themselves, the right to speak freely with prosecutors, and even admit participation in the crime. It allows for plea bargaining offering to plead guilty pursuant to a deal, without fear that the words spoken will later be used at trial if the discussions fail to yield a plea bargain or if any plea agreement that is reached falls apart.

The government benefits from the rule because it can avoid having to try too many cases.

If not for Rule 410’s protections lawyers and or pro se (self representing) Defendants could say little or nothing during plea negotiations. Specifically they could never make an admission of wrongdoing without great risk. Plea negotiations may or may not succeed, but one thing is clear, the rule protects statements made during those negotiations.

The policy behind plea agreements has been summarized by Colorado’s courts as follows:

If the effectiveness and integrity of the plea bargaining process are to be preserved, admissions or confessions made in connection with plea offers and negotiations must not be admitted as independent substantive evidence of guilt.

The defendant should not be penalized for cooperating with the prosecution by engaging in an approved plea negotiation process which is consistent with the objectives of the criminal justice system.

Gelfand v. People , 196 Colo. at 491, 586 P.2d at 1334

Except as otherwise provided by statutes of the State of Colorado, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in any connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer.

This rule shall not apply to the introduction of voluntary and reliable statements made in court on the record in connection with any of the foregoing pleas or offers where offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement.

This rule shall be superseded by any amendment to the Colorado Rules of Criminal Procedure which is inconsistent with this rule, and which takes effect after the effective date of these Colorado Rules of Evidence.

Bottom Line, under Rule 410, statements made in connection with a guilty plea or an offer to plead guilty are not admissible in any civil or criminal action against the person who made the plea or offer.

Colorado Courts have also said this about Rule 410:

“The policy against admitting, at trial, statements made during plea negotiations is designed to encourage the `unrestrained candor which produces effective plea discussions between the attorney for the government and the attorney for the defendant or the defendant when acting pro se.'”

Having started the first 14 years as a District Attorney, I offer the following suggestions if you decide you want to represent yourself in negotiations with a District Attorney:

In ay negotiation, you want the other side to assign you some measure of credibility. The best outcomes result when you polite, respectful, and patient during the process of plea bargaining.

1. Politely let the DA know you are there and representing yourself and then wait patiently for the Da to call your case. When he or she is ready for you, they will talk to you. Do NOT repeatedly call their name and interrupt what they are doing.
2. Do not hover around them sit down in the gallery. Do not creep up behind them and violate their personal space.
3. NEVER tell the DA what the DA “needs to do” with the case. Do not demand a dismissal, or a diversion offer, or any other result. Rather explain your position in the case clearly, cogently and using bullet points if possible. Produce copies of documents, or photos to support your position for a plea bargain. Explain your reasons why there are extenuating or mitigating circumstances but never demand anything.
4. Stick to the facts of the case, do not use too much time discussing what a great life you haveled. The DA will most likely know your criminal history. Telling the DA too much about yourself and too little about the case will backfire. Just the facts until the DA asks questions about your personal life story.
   
   In the early stages of a case the prosecutor is trying to determine whether there is a chance your case will resolve or whether it will go to trial. If it is clear that you are accepting responsibility for your actions and want to work out some sort of plea bargain, the prosecutor will be more willing to engage in extended discussions over time meaning a second court date to fill in the gaps.
5. Be straight with the DA. Do not misrepresent the facts. Of course there will always be “spin” but never knowingly lie to the DA. If the prosecutor learns you lied about an important fact it can, and often does end, the negotiations.
6. Never attack or threaten the DA on personal grounds even when the negotiations are going poorly. Keep your cool and your dignity. Prosecutors, by design, have the power of plea bargaining or taking a case to trial. In the system, they are THE most powerful players. Remember that. The Judge has no authority to enter into the plea bargaining negotiations.
7. DA’s Support Other DA’s Never Threaten To Go To The DA’s Supervisor. There may be times when your prosecutor is being completely unreasonable. If you decide to appeal that DA’s decision, day nothing and later contact his supervisor if absolutely necessary. But know this, 99 out of 100 times, the Chief Deputy DA will support his front line prosecutor. Therefore almost never take the case up the line unless you have no other alternative.

Good Luck.

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The contents of this article are based upon my research, my personal experience and my personal analysis and opinions developed from my thirty six years (as of 2017) of criminal trial experience from both sides of the courtroom as a former career prosecutor for Arapahoe and Douglas Counties (14 years) and as the owner of my own Criminal Defense Law Firm since 1999 (19 years).

The reader is also admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm 303-627-7777.

Never stop fighting never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

About The Author: H. Michael Steinberg Email The Author at: [email protected]. A Denver Colorado Criminal Defense Lawyer or call his office at 303-627-7777 during business hours or call his cell if you cannot wait and need his immediate assistance please call 720-220-2277.

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H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way.