BOEHM, J.
We hold that a defendant’s statements made to a victim or to the court in an effort to gain acceptance of a plea agreement by the court are statements in connection with a plea agreement and therefore are not admissible in evidence pursuant to Evidence Rule 410. In this case the defendant’s letter of apology to a victim was admitted at his trial after a plea agreement was rejected. This was error but under the facts of this case the error was harmless.
. . . .
Gonzalez agreed to plead guilty to criminal mischief and operating a vehicle while intoxicated endangering a person. The trial court took the plea agreement under advisement and postponed the sentencing hearing to permit EVSC to consider whether to object to the agreement. Two weeks before the hearing, Gonzalez sent a letter to EVSC expressing his regret to all who were “involved in the terrible accident I caused,” apologizing for his “irresponsible actions” and “poor decision to drink that day,” and asking EVSC to show compassion to him and his family. He promised to seek alcohol counseling and asked EVSC to consider that “no one was hurt in the accident.”
The court rejected the plea and the case went to trial where Gonzalez’s letter was admitted over his objection. After the court dismissed the charge of operating a vehicle with a blood alcohol content of 0.15 or more, the jury found Gonzalez guilty of the remaining charges.
The Court of Appeals reversed, finding that Gonzalez’s letter was inadmissible because it was written as a part of a plea negotiation and that the error “likely had a significant effect on the jury.” Gonzalez v. State, 908 N.E.2d 313, 315, 319 (Ind. Ct. App. 2009). We granted transfer.
. . . .
The common law, an Indiana statute, and Evidence Rule 410 all recognize that statements incident to plea bargaining may be inadmissible at trial. Gilliam v. State, 650 N.E.2d 45, 49 (Ind. Ct. App. 1995). This rule is designed to encourage open discussion in the plea bargaining process. Stephens v. State, 588 N.E.2d 564, 565–66 (Ind. Ct. App. 1992), trans. denied. This exclusion is rooted in the same policy considerations that underlie excluding offers of civil compromise in civil cases. 2 McCormick on Evidence § 266, at 237 (Kenneth S. Broun et al. eds., 6th ed. 2006); see Bules v. Marshall County, 920 N.E.2d 247, 252 (Ind. 2010) (“[This rule] is designed to facilitate settlement by promoting candor in settlement discussions . . . .”).
. . . .
As Martin held, the privilege attaches only after a plea negotiation has begun. In this case that is no issue because a plea agreement had been reached and was under consideration by the court. Only the prosecutor has the authority to enter into a plea agreement, and certainly a defendant’s statements in the course of negotiation with the prosecutor are within the privilege afforded by the plea negotiation. The purposes of the rule require also excluding statements to some persons in addition to those with authority to enter into a binding agreement. Under Indiana law, after a defendant and the State enter into a plea agreement, the trial court is required to order a presentence report. I.C. § 35-35-3-3(a). The probation officer preparing this report is to gather information regarding “the circumstances attending the commission of the offense.” I.C. §§ 35-38-1-8(a), -9(b)(1). The plea agreement must also be shown to the victim, who has a right to comment on the crime and the proposed sentence. I.C. § 35-35-3-5. The agreement is not final until it is approved by the trial court. I.C. § 35-35-3-3. In the course of this process, the defendant may make statements to the victim, the trial judge, or other court officers. These statements are within the language of both the statute (“concerning” a plea agreement) and Evidence Rule 410 (“in connection with” a plea agreement). Moreover, the purposes of the rule—to encourage candor and facilitate a plea agreement–—are best furthered by excluding any concessions from evidence if the plea is not finalized. Accordingly, we hold that for a statement to be a privileged communication, the defendant must have been charged with a crime at the time of the statement and the prosecutor and the defendant must have initiated discussions related to a plea agreement. Second, the statement must have been made with the intent of seeking a plea agreement or in contemplation of a proposed agreement. Third, the statement is privileged if made to someone who has the authority to enter into or approve a binding plea agreement or who has a right to object to or reject the agreement.
Here, Gonzalez and the State had agreed to a proposed plea agreement. Before the agreement could be finalized, it required approval of the trial court. EVSC, as a victim of the accident, had a right to express its opinion to the court as to approval of the agreement. Gonzalez then wrote the letter in question to EVSC in an attempt to persuade it to accept the agreement. Gonzalez’s letter had “as its ultimate purpose the reduction of punishment or other favorable treatment from the State to the defendant.” Gilliam, 650 N.E.2d at 49 (quoting Crandell v. State, 490 N.E.2d 377, 380 (Ind. Ct. App. 1986) trans. denied). Gonzalez’s letter was therefore a communication made in connection with his guilty plea. Accordingly, the trial court erred in admitting the letter at trial.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.