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Cohens v. Hess, 1998 N.Y. Int. 0153 (Dec. 1, 1998).

EVIDENCE - ADMISSIBILITY - WITHDRAWN GUILTY PLEAS - CIVIL CASE

Evidence of a withdrawn guilty plea from a criminal case is admissible in a related civil case if the initial court allowed the withdrawal as a matter of discretion.

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

Defendant Hess was involved in a traffic accident with Plaintiff Cohens. After the accident, Hess pled guilty to a charge of failure to obey a traffic-control device. Three years later, after Cohens had filed a civil action against Hess, Hess moved to have the judgment of his conviction vacated and requested the removal of his previously entered guilty plea. Hess based his right to this removal on the fact that he was not represented by counsel when he pled guilty. During the civil action between Cohens and Hess, Cohens' attorney questioned Hess on cross-examination about his prior guilty plea in an attempt to impeach him. Both the trial court and the Appellate Division found Cohens' attorney's use of the withdrawn guilty plea during the trial to be improper.

ISSUE & DISPOSITION

Issue

Whether evidence of a guilty plea in connection with a traffic violation, that has been withdrawn with the court's approval, is admissible in a subsequent civil action seeking damages.

Disposition

Yes. Evidence of a withdrawn guilty plea is admissible in a civil action if the court allowed the withdrawal of the plea as a matter of discretion and not as a result of constitutional or statutory mandate.

AUTHORITIES CITED

Cases Cited by the Court

  • Kercheval v. United States, 274 U.S. 220 (U.S. 1927).
  • People v. Ross, 67 N.Y.2d 321 (N.Y. 1986).
  • People v. Moore, 66 N.Y.2d 1028 (N.Y. 1985).
  • People v. Evans, 58 N.Y.2d 14 (N.Y. 1982).
  • People v. Droz, 39 N.Y.2d 457 (N.Y. 1976).
  • People v. Farinaro, 36 N.Y.2d 283 (N.Y. 1975).
  • People v. Spitaleri, 9 N.Y.2d 168 (N.Y. 1961).
  • Ando v. Woodbury, 8 N.Y.2d 165 (N.Y. 1960).

Other Sources Cited by the Court

RELATED SOURCES

  • State v. Felts, 1998 WL 118072 (Tenn Crim. App.) (March 17, 1998).
  • People v. Cole, 584 P.2d 71 (Co. 1978).
  • People v. Sirhan, 497 P.2d 1121 (Ca. 1972).
  • Cal. Evid. Code § 1153.
  • Co. R. Evid. 410.
  • Tenn. R. Evid. 410.
  • Fla. R. Crim. P. Rule 3.172.

COMMENTARY

State of the Law Before Cohens

In People v. Spitaleri, 9 N.Y.2d 168 (N.Y. 1961), the court held that a defendant's withdrawn guilty plea could not be used as an admission of the crime or for any other purpose. The court stated that admitting such a plea was equivalent to forcing the defendant to testify against himself. In Ando v. Woodbury, 8 N.Y. 2d 165 (N.Y. 1960), the court held that a prior guilty plea to a traffic violation may be used to prove negligence. When used in a civil case, the defendant may explain such a plea so that the jury can determine its weight. The court based its analysis on the general principle that facts which have probative value are admissible unless otherwise prohibited.

Effect of Cohens on Current Law

The Court limited the scope of Spitaleri to criminal cases and drew a distinction between the admissibility of a vacated plea in criminal and civil cases. In civil actions, Cohens permits the use of vacated guilty pleas to impeach the credibility of a witness. In addition, the Court reaffirmed, from Ando, Defendant's right to a full and fair opportunity to explain the reasons for the withdrawn plea.

Although not expressly stated, the Court seems to suggest that a guilty plea vacated based on a violation of due process is not admissible.

Unanswered Questions

Does the Court's ruling in Cohens apply only to vacated guilty pleas from traffic violation cases where the defendant is not entitled to legal counsel? It is unclear whether the Court would apply Cohens in a case in which the defendant had been entitled to legal counsel in the earlier proceeding but had waived such right.

Is a withdrawn guilty plea that was vacated on due process grounds admissible in subsequent civil action? The decision suggests that Cohens would not apply the guilty pleas that had been vacated on constitutional or statutory grounds. However, the potential impact of Cohens on these cases is unclear.

Survey of the Law in Other Jurisdictions

Many jurisdictions don't follow this Court's ruling. For example, Colorado Rule of Evidence 410 provides, in pertinent part: "[E]vidence of a plea of guilty, later withdrawn, ...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." However, in Colorado, statements made in court, before withdrawal of a guilty plea, are admissible for impeachment purposes. See People v. Cole, 584 P.2d 71 (Co. 1978). (Holding that Co. R. Evid. 410 did not apply to statements made to police after trial court had accepted defendant's guilty plea but before defendant moved to withdraw.)

Likewise, in California, evidence of a plea of guilty, later withdrawn by the defendant in a criminal action is inadmissable in any action or in "any proceeding of any nature," including proceedings before agencies, commissions, boards, and tribunals. Cal. Evid. Code § 1153. The purpose of California's rule is to promote the public interest by encouraging parties to settle criminal cases without the necessity of a trial. See People v. Sirhan, 497 P.2d 1121 (Ca. 1972).

To promote the settlement of criminal actions, Tennessee also prohibits the use of a withdrawn guilty plea in any subsequent civil procedure. See Tenn. R. Evid. 410; State v. Felts, 1998 WL 118072 (Tenn Crim. App.) (March 17, 1998) (Holding that allowing district attorney to question the defendant regarding admissions made during the submission of a guilty plea, which was later withdrawn, was harmless error.)

Florida also prohibits the use of evidence of a withdrawn guilty plea. Rule 3.172 (h) of the Florida Rules of Criminal Procedure provides, in pertinent part: "[E]vidence of an offer or a plea of guilty..., later withdrawn,... is not admissible in any civil or criminal proceeding against the person who made the plea or offer." Fla. R. Crim. P. Rule 3.172.

Prepared By:

  • Sarah E. Buffett, '99
  • Andrew Cohen, '99
  • Joshua Eisenberg, '00
  • Meredith Ford, '99
  • Sheila Kiernan, '00
  • Ashley Lattal, '00