Evidence of a withdrawn or rejected guilty plea, plea of nolo contendere, or admission to sufficient facts is not admissible in any civil or criminal proceeding against the person who made the withdrawn plea, admission, or offer. Additionally, evidence of statements made in connection with and relevant to any of the foregoing withdrawn pleas, admissions, or offers is not admissible. Evidence of such statements, however, is admissible in a criminal proceeding for perjury if the statement was made by the defendant under oath, on the record, and in the presence of counsel, if any.
This section is taken nearly verbatim from Mass. R. Crim. P. 12(f). Rule 12(f) bars the use in evidence in any criminal or civil proceeding of a withdrawn guilty plea, a withdrawn plea of nolo contendere, a withdrawn admission of sufficient facts, or a withdrawn offer of the same. See Mass. R. Crim. P. 12(f). But see Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 747–750, 481 N.E.2d 1356, 1362–1364 (1985) (guilty plea, not withdrawn, is an admission of material facts alleged in complaint or indictment and is admissible as evidence of an admission in subsequent civil case without having preclusive effect); Hopkins v. Medeiros, 48 Mass. App. Ct. 600, 613, 724 N.E.2d 336, 346 (2000) (“An admission to sufficient facts may be introduced against the defendant in a subsequently litigated civil suit arising out of the same incident on the theory that the proceeding was the functional equivalent of a guilty plea, with the same degree of finality” [quotations and citation omitted].); Section 801(d)(2)(A), Definitions: Statements which Are Not Hearsay: Admission by Party-Opponent. Except in a prosecution for perjury, the bar applies to any statement made in the course of the plea negotiations as long as it is relevant to the negotiations. See Mass. R. Crim. P. 12(f).
Unlike Fed. R. Evid. 410, the statements in question need not have been made to an attorney for the prosecuting authority to qualify for exclusion. See Commonwealth v. Wilson, 430 Mass. 440, 442–443, 720 N.E.2d 464, 466–467 (1999). Rule 12(f) excludes only statements made during “plea negotiations,” not the apparently broader “plea discussions” referred to in Fed. R. Evid. 410. Id. at 443, 720 N.E.2d at 467 (while statements to a detective could be excluded under Mass. R. Crim. P. 12[f], the statements were nonetheless admissible because they were not made during plea negotiations). On the issue of what constitutes plea negotiations, see Commonwealth v. Smiley, 431 Mass. 477, 482 n.3, 727 N.E.2d 1182, 1187 n.3 (2000) (holding there were no plea negotiations where prosecutor made no promises, commitments, or offers and defendant did not give his statement only in consideration of a benefit offered by prosecutor), and Commonwealth v. Luce, 34 Mass. App. Ct. 105, 111–112, 607 N.E.2d 427, 430–431 (1993) (meetings between defendant, counsel, and government officers did not constitute plea bargaining).
A refusal to plead guilty is not admissible when offered by the defendant to prove consciousness of innocence. See Commonwealth v. DoVale, 57 Mass. App. Ct. 657, 662–663, 785 N.E.2d 416, 420–421 (2003).