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52 Calif. L. Rev. 408 (1964)
Nolo Contendere--Its Use and Effect

handle is hein.journals/calr52 and id is 426 raw text is: NOLO CONTENDERE-ITS USE AND EFFECT In 1963, the California legislature enacted a statute permitting defendants in criminal actions to enter a plea of nolo contendere with the consent of the court and the prosecutor.' Although new to California criminal procedure, the plea of nolo contendere has a common law history dating back to the reign of Henry IV.2 Prior to California's adoption of this plea, federal and state courts had recognized the plea as a legacy of the common law or, in rare instances, state legislatures had codified it.3 The California statute, like its common law counterpart, treats the plea as one of guilty for purposes of the trial.4 On the other hand, the nolo plea, unlike a plea of guilty, never constitutes an admission against interest in any civil suit growing out of the criminal prosecution.5 If for example a defendant is con- victed of battery upon a plea of guilty, the victim of the assault may use the defendant's plea as a conclusive admission of guilt in a civil suit for damages.° Use of a nolo plea would prevent such a result. It has been argued that even if a nolo plea is not recognized, a plea of not guilty can also prevent an admission. The defendant may enter his plea, refrain from contesting the prosecution's case, and proceed to a verdict of guilty without having made any damaging admis- sions.7 The doctrine of collateral estoppel, however, might still prevent the de- 1 CAL. PEN. CoDE § 1016(3): There are six kinds of pleas to an indictment or informa- tion, or to a complain charging an offense triable in any inferior court: (3) Nolo contendere, subject to the consent of the district attorney and with the ap- proval of the court. The legal effect of such a plea shall be the same as a plea of guilty, but the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based. The term nolo contendere is also known as nolle contendere and non vidt. See Annot., 152 A.LR.L 253, 254 & n.3 (1944). 2 Hen. IV (1399-1413) ; the plea in its original common law form is described in 2 HAw- xKs, PLEas oF THE CRowN 466 (8th ed. 1824): An implied confession is where a defendant, in a case not capital, doth not directly own himself guilty, but in a manner admits it by yielding to the King's mercy, and desiring to submit to a small fine in which case, if the court think fit to accept such submission, and ... without putting'him to a direct confession ... the defendant shall not be estopped to plead not guilty to an action for the same fact .... See I Cmin , CmsnnAr. LAw 430 (1826 ed.), another early version of the common law plea. 3 See, e.g., in federal courts: Hudson v. United States, 272 U.S. 451 (1926); in state courts: State v. La Rose, 71 N.H. 435, 52 At. 943 (1902); contra, State v. Kiewel, 166 Minn. 302, 207 N.W. 646, 647 (1926); by statute: NEB. REv. STAT. ANN. 29-1819.01 (1956). FED. R. Cmam. P. 11, recognizing the federal adoption of nolo contendere, provides the procedure for its use. The California statute mirrors the common law plea used in other jurisdictions: (a) the plea is subject to the court's unfettered consent, (b) within the case itself it has the same effect as a plea of guilty, and (c) it may not be used as an admission in any civil suit based upon the criminal prosecution. See Tseung Chu v. Cornell, 247 F;2d 929, 937 (9th Cir.), cert. denied, 355 U.S. 892 (1957); State v. Burnett, 174 N.C. 796, 93 S.E. 473 (1917). In Burnett the court stated that the plea's only advantage was preventing estoppel in a civil action. 4 See, e.g., United States v. Norris, 281 U.S. 619 (1930); United States v. Cosentino, 191 F.2d 574 (7th Cir. 1951); State v. Herlihy, 102 Me. 310, 66 Atl. 643 (1906). 5 See 4 WixmoP, EvmENcE § 1066 n.4 (3d ed. 1940), listing jurisdictions recognizing tis proposition. 6 See Engstrom v. Nelson, 41 ND. 530, 171 N.W. 90 (1919) ; cf. Russ v. Good, 90 Vt. 236, 97 At. 987 (1916). 7 It is argued by Lane-Reticker, Nolo Contendere in North Carolina, 34 N.CL. RMv. 280, 290-91 (1956), that for this very reason a plea of nolo is an unnecessary compliment to the law. He does concede, however, that the plea of nolo saves time and tends to expedite judicial business since otherwise the prosecutor must put into evidence a case against the de- 408

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