OCTOBER TERM, 1994
Syllabus
UNITED STATES
v. MEZZANATTO
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 93-1340. Argued November 2, 1994-Decided January 18,
1995
Respondent was convicted on federal drug charges after being
crossexamined, over his counsel's objection, about inconsistent
statements that he had made during an earlier plea discussion. The
Ninth Circuit reversed, holding that respondent's agreement that
any statements he made in the plea discussion could be used at
trial for impeachment purposes was unenforceable under Federal Rule
of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6)
(Rules or plea-statement Rules), which exclude from admission into
evidence against a criminal defendant statements made during plea
bargaining.
Held: An agreement to waive the plea-statement Rules'
exclusionary provisions is valid and enforceable absent some
affirmative indication that the defendant entered the agreement
unknowingly or involuntarily. Pp.200-211.
(a) Contrary to the Ninth Circuit's conclusion, the Rules'
failure to include an express waiver-enabling clause does not
demonstrate Congress' intent to preclude waiver agreements such as
respondent's. Rather, the Rules were enacted against a background
presumption that legal rights generally, and evidentiary provisions
specifically, are subject to waiver by voluntary agreement of the
parties. See,
e. g., Ricketts v.
Adamson, 483 U. S. 1, 10;
Sac and
Fox Indians of Miss. in Iowa v.
Sac and Fox Indians of Miss.
in Okla., 220 U.
S. 481, 488-489.
Crosby v.
United States,
506 U. S. 255,
259, and
Smith v.
United States, 360 U. S. 1, 9,
distinguished. Respondent bears the responsibility of identifying
some affirmative basis for concluding that the Rules depart from
the presumption of waivability. Pp. 200-203.
(b) The three potential bases offered by respondent for
concluding that the Rules are not consonant with the presumption of
waivability(a) that the Rules establish a "guarantee [to] fair
procedure" that cannot be waived, (b) that waiver is fundamentally
inconsistent with the Rules' goal of encouraging voluntary
settlement, and (c) that waiver agreements should be forbidden
because they invite prosecutorial overreaching and abuse-are not
persuasive. Instead of the
per se rejection of waiver
adopted by the Ninth Circuit, the appropriate approach is to permit
case-by-case inquiries into whether waiver agreements are the
197
product of fraud or coercion. Here, respondent conferred with
his lawyer after the prosecutor proposed waiver as a condition of
proceeding with the plea discussion, and he has never complained
that he entered into the waiver agreement at issue unknowingly or
involuntarily. Pp. 203-211.
998 F.2d
1452, reversed.
THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, GINSBURG, and
BREYER, JJ., joined. GINSBURG, J., filed a concurring statement, in
which O'CONNOR and BREYER, JJ., joined,
post, p. 211.
SOUTER, J., filed a dissenting opinion, in which STEVENS, J.,
joined,
post, p. 211.
Miguel A. Estrada argued the cause for the United
States.
With him on the briefs were Solicitor General Days, Assistant
Attorney General Harris, and Deputy Solicitor General Kneedler.
Mark R. Lippman, by appointment of the Court, 511 U. S.
1067, argued the cause and filed a brief for respondent. *
JUSTICE THOMAS delivered the opinion of the Court. Federal Rule
of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6)
provide that statements made in the course of plea discussions
between a criminal defendant and a prosecutor are inadmissible
against the defendant. The court below held that these exclusionary
provisions may not be waived by the defendant. We granted
certiorari to resolve a conflict among the Courts of Appeals, and
we now reverse.
I
On August 1, 1991, San Diego Narcotics Task Force agents
arrested Gordon Shuster after discovering a methamphetamine
laboratory at his residence in Rainbow, California. Shuster agreed
to cooperate with the agents, and a few hours
* John J. Cleary filed a brief for
the National Association of Criminal Defense Lawyers et al. as
amici curiae urging affirmance.
198
after his arrest he placed a call to respondent's pager. When
respondent returned the call, Shuster told him that a friend wanted
to purchase a pound of methamphetamine for $13,000. Shuster
arranged to meet respondent later that day.
At their meeting, Shuster introduced an undercover officer as
his "friend." The officer asked respondent if he had "brought the
stuff with him," and respondent told the officer it was in his car.
The two proceeded to the car, where respondent produced a brown
paper package containing approximately one pound of
methamphetamine. Respondent then presented a glass pipe (later
found to contain methamphetamine residue) and asked the officer if
he wanted to take a "hit." The officer indicated that he would
first get respondent the money; as the officer left the car, he
gave a prearranged arrest signal. Respondent was arrested and
charged with possession of methamphetamine with intent to
distribute, in violation of 84 Stat. 1260, as amended, 21 U. S. C.
§ 841(a)(1).
On October 17, 1991, respondent and his attorney asked to meet
with the prosecutor to discuss the possibility of cooperating with
the Government. The prosecutor agreed to meet later that day. At
the beginning of the meeting, the prosecutor informed respondent
that he had no obligation to talk, but that if he wanted to
cooperate he would have to be completely truthful. As a condition
to proceeding with the discussion, the prosecutor indicated that
respondent would have to agree that any statements he made during
the meeting could be used to impeach any contradictory testimony he
might give at trial if the case proceeded that far. Respondent
conferred with his counsel and agreed to proceed under the
prosecutor's terms.
Respondent then admitted knowing that the package he had
attempted to sell to the undercover police officer contained
methamphetamine, but insisted that he had dealt only in "ounce"
quantities of methamphetamine prior to his ar-
199
rest. Initially, respondent also claimed that he was acting
merely as a broker for Shuster and did not know that Shuster was
manufacturing methamphetamine at his residence, but he later
conceded that he knew about Shuster's laboratory. Respondent
attempted to minimize his role in Shuster's operation by claiming
that he had not visited Shuster's residence for at least a week
before his arrest. At this point, the Government confronted
respondent with surveillance evidence showing that his car was on
Shuster's property the day before the arrest, and terminated the
meeting on the basis of respondent's failure to provide completely
truthful information.
Respondent eventually was tried on the methamphetamine charge
and took the stand in his own defense. He maintained that he was
not involved in methamphetamine trafficking and that he had thought
Shuster used his home laboratory to manufacture plastic explosives
for the CIA. He also denied knowing that the package he delivered
to the undercover officer contained methamphetamine. Over defense
counsel's objection, the prosecutor cross-examined respondent about
the inconsistent statements he had made during the October 17
meeting. Respondent denied having made certain statements, and the
prosecutor called one of the agents who had attended the meeting to
recount the prior statements. The jury found respondent guilty, and
the District Court sentenced him to 170 months in prison.
A panel of the Ninth Circuit reversed, over the dissent of Chief
Judge Wallace.
998 F.2d
1452 (1993). The Ninth Circuit held that respondent's agreement
to allow admission of his plea statements for purposes of
impeachment was unenforceable and that the District Court therefore
erred in admitting the statements for that purpose. We granted
certiorari because the Ninth Circuit's decision conflicts with the
Seventh Circuit's decision in
United States v.
Dortch, 5 F.3d
1056, 1067-1068 (1993).
200
II
Federal Rule of Evidence 410 and Federal Rule of Criminal
Procedure 11 (e) (6) (Rules or plea-statement Rules) are
substantively identical. Rule 410 provides:
"Except as otherwise provided in this rule, evidence of the
following is not, in any civil or criminal proceeding, admissible
against the defendant who ... was a participant in the plea
discussions: ... (4) any statement made in the course of plea
discussions with an attorney for the prosecuting authority which do
not result in a plea of guilty .... "
The Ninth Circuit noted that these Rules are subject to only two
express exceptions,l neither of which says anything about waiver,
and thus concluded that Congress must have meant to preclude waiver
agreements such as respondent's. 998 F. 2d, at 1454-1456. In light
of the "precision with which these rules are generally phrased,"
the Ninth Circuit declined to "write in a waiver in a waiverless
rule."
Id., at 1456.2
The Ninth Circuit's analysis is directly contrary to the
approach we have taken in the context of a broad array of
constitutional and statutory provisions. Rather than deeming waiver
presumptively unavailable absent some sort of ex-
1 A statement made by a criminal defendant in the course of plea
discussions is "admissible (i) in any proceeding wherein another
statement made in the course of the same ... plea discussions has
been introduced and the statement ought in fairness be considered
contemporaneously with it, or (ii) in a criminal proceeding for
perjury or false statement if the statement was made by the
defendant under oath, on the record and in the presence of
counsel." Fed. Rule Evid. 410. Accord, Fed. Rule Crim. Proc.
11(e)(6).
2 Respondent also goes to great lengths to establish a
proposition that is not at issue in this case: that the
plea-statement Rules do not contain a blanket "impeachment"
exception. We certainly agree that the Rules give a defendant the
right not to be impeached by statements made during plea
discussions, but that conclusion says nothing about whether the
defendant may relinquish that right by voluntary agreement.
201
press enabling clause, we instead have adhered to the opposite
presumption. See
Shutte v.
Thompson, 15 Wall. 151,
159 (1873) ("A party may waive any provision, either of a contract
or of a statute, intended for his benefit");
Peretz v.
United States, 501 U. S. 923, 936 (1991)
("The most basic rights of criminal defendants are ... subject to
waiver"). A criminal defendant may knowingly and voluntarily waive
many of the most fundamental protections afforded by the
Constitution. See,
e. g., Ricketts v.
Adamson,
483 U. S. 1, 10
(1987) (double jeopardy defense waivable by pretrial agreement);
Boykin v.
Alabama, 395 U. S. 238, 243 (1969)
(knowing and voluntary guilty plea waives privilege against
compulsory self-incrimination, right to jury trial, and right to
confront one's accusers);
Johnson v.
Zerbst, 304 U. S. 458, 465 (1938)
(Sixth Amendment right to counsel may be waived). Likewise, absent
some affirmative indication of Congress' intent to preclude waiver,
we have presumed that statutory provisions are subject to waiver by
voluntary agreement of the parties. See,
e. g., Evans v.
Jeff D., 475
U. S. 717, 730732 (1986) (prevailing party in civil-rights
action may waive its statutory eligibility for attorney's
fees).
Our cases interpreting the Federal Rules of Criminal Procedure
are consistent with this approach. The provisions of those Rules
are presumptively waivable, though an express waiver clause may
suggest that Congress intended to occupy the field and to preclude
waiver under other, unstated circumstances. See
Crosby v.
United States, 506 U. S. 255 (1993);
Smith v.
United States, 360 U. S. 1 (1959). In
Crosby, for example, we held that a defendant's failure to
appear for any part of his trial did not constitute a valid waiver
of his right to be present under Federal Rule of Criminal Procedure
43. We noted that the specific right codified in Rule 43 "was
considered unwaivable in felony cases" at common law, and that Rule
43 expressly recognized only one exception to the common-law rule.
506 U. S., at 259. In light of the specific common-law history
behind Rule 43 and the ex-
202
press waiver provision in the Rule, we declined to conclude that
"the drafters intended the Rule to go further."
Id., at 260.
Our decision in
Smith followed a similar line of reasoning.
It held that waiver of the indictment requirement embodied in
Federal Rule of Criminal Procedure 7(a) is confined to the specific
circumstances outlined in the Rule's text:
"Rule 7(a) recognizes that this safeguard may be waived, but
only in those proceedings which are noncapital." 360 U. S., at 9.
Unlike Rules 43 and 7(a), however, the plea-statement Rules make no
mention of waiver, and so
Crosby and
Smith provide no
basis for setting aside the usual presumption.
The presumption of waivability has found specific application in
the context of evidentiary rules. Absent some "overriding
procedural consideration that prevents enforcement of the
contract," courts have held that agreements to waive evidentiary
rules are generally enforceable even over a party's subsequent
objections. 21 C. Wright & K. Graham, Federal Practice and
Procedure § 5039, pp. 207-208 (1977) (hereinafter Wright &
Graham). Courts have "liberally enforced" agreements to waive
various exclusionary rules of evidence. Note, Contracts to Alter
the Rules of Evidence, 46 Harv. L. Rev. 138, 139-140 (1933). Thus,
at the time of the adoption of the Federal Rules of Evidence,
agreements as to the admissibility of documentary evidence were
routinely enforced and held to preclude subsequent objections as to
authenticity. See,
e. g., Tupman Thurlow Co. v. S. S.
Cap
Castillo, 490 F.2d
302, 309 (CA2 1974);
United States v.
Wing,
450 F.2d
806, 811 (CA9 1971). And although hearsay is inadmissible
except under certain specific exceptions, we have held that
agreements to waive hearsay objections are enforceable. See
Sac
and Fox Indians of Miss. in Iowa v.
Sac and Fox Indians of
Miss. in Okla., 220 U. S. 481, 488489
(1911); see also
United States v.
Bonnett, 877 F.2d
1450, 1458-1459 (CAlO 1989) (party's stipulation to
admissibility of document precluded hearsay objection at
trial).
203
Indeed, evidentiary stipulations are a valuable and integral
part of everyday trial practice. Prior to trial, parties often
agree in writing to the admission of otherwise objectionable
evidence, either in exchange for stipulations from opposing
counselor for other strategic purposes. Both the Federal Rules of
Civil Procedure and the Federal Rules of Criminal Procedure appear
to contemplate that the parties will enter into evidentiary
agreements during a pretrial conference. See Fed. Rule Civ. Proc.
16(c)(3); Fed. Rule Crim. Proc. 17.1. During the course of trial,
parties frequently decide to waive evidentiary objections, and such
tactics are routinely honored by trial judges. See 21 Wright &
Graham § 5032, at 161 ("It is left to the parties, in the first
instance, to decide whether or not the rules are to be enforced
.... It is only in rare cases that the trial judge will ... exclude
evidence they are content to see admitted"); see also
United
States v.
Coonan, 938 F.2d
1553, 1561 (CA2 1991) (criminal defendant not entitled "to
evade the consequences of an unsuccessful tactical decision" made
in welcoming admission of otherwise inadmissible evidence).3
III
Because the plea-statement Rules were enacted against a
background presumption that legal rights generally, and evidentiary
provisions specifically, are subject to waiver by voluntary
agreement of the parties, we will not interpret
3 Respondent contends that a pretrial agreement to waive the
exclusionary provisions of the plea-statement Rules is unlike a
typical stipulation, which is entered into while the case is in
progress, and is more like an extrajudicial agreement made outside
the context of litigation. Brief for Respondent 39. While it may be
true that extrajudicial contracts made prior to litigation trigger
closer judicial scrutiny than stipulations made within the context
of litigation, see 21 Wright & Graham § 5039, at 206, there is
nothing extrajudicial about the waiver agreement at issue here. The
agreement was made in the course of a plea discussion aimed at
resolving the specific criminal case that was "in progress" against
respondent.
204
Congress' silence as an implicit rejection of waivability.
Respondent bears the responsibility of identifying some affirmative
basis for concluding that the plea-statement Rules depart from the
presumption of waivability.
Respondent offers three potential bases for concluding that the
Rules should be placed beyond the control of the parties. We find
none of them persuasive.
A
Respondent first suggests that the plea-statement Rules
establish a "guarantee [to] fair procedure" that cannot be waived.
Brief for Respondent 12. We agree with respondent's basic premise:
There may be some evidentiary provisions that are so fundamental to
the reliability of the factfinding process that they may never be
waived without irreparably "discredit[ing] the federal courts." See
21 Wright & Graham § 5039, at 207-208; see also
Wheat v.
United States, 486 U. S. 153, 162 (1988)
(court may decline a defendant's waiver of his right to
conflict-free counsel);
United States v.
Josefik,
753 F.2d
585, 588 (CA7 1985) ("No doubt there are limits to waiver; if
the parties stipulated to trial by 12 orangutans the defendant's
conviction would be invalid notwithstanding his consent, because
some minimum of civilized procedure is required by community
feeling regardless of what the defendant wants or is willing to
accept"). But enforcement of agreements like respondent's plainly
will not have that effect. The admission of plea statements for
impeachment purposes
enhances the truthseeking function of
trials and will result in more accurate verdicts. Cf.
Jenkins v.
Anderson, 447 U. S. 231, 238 (1980)
(once a defendant decides to testify, he may be required to face
impeachment on cross-examination, which furthers the "'function of
the courts of justice to ascertain the truth''') (quoting
Brown v.
United States, 356 U. S. 148, 156
(1958)); Note, 46 Harv. L. Rev., at 142-143 ("[A] contract to
deprive the court of relevant testimony ... stands on a
different
205
ground than one admitting evidence that would otherwise have
been barred by an exclusionary rule. One contract is an impediment
to ascertaining the facts, the other aids in the final
determination of the true situation") (footnote omitted). Under any
view of the evidence, the defendant has made a false statement,
either to the prosecutor during the plea discussion or to the jury
at trial; making the jury aware of the inconsistency will tend to
increase the reliability of the verdict without risking
institutional harm to the federal courts.
Respondent nevertheless urges that the plea-statement Rules are
analogous to Federal Rule of Criminal Procedure 24(c), which
provides that "[a]n alternate juror who does not replace a regular
juror shall be discharged after the jury retires to consider its
verdict." JUSTICE KENNEDY'S concurrence in
United States v.
Olano, 507 U.
S. 725, 741 (1993), suggested that the guarantees of Rule 24(c)
may never be waived by an agreement to permit alternate jurors to
sit in on jury deliberations, and respondent asks us to extend that
logic to the plea-statement Rules. But even if we assume that the
requirements of Rule 24(c) are "the product of a judgment that our
jury system should be given a stable and constant structure, one
that cannot be varied by a court with or without the consent of the
parties,"
id., at 742, the pleastatement Rules plainly do
not satisfy this standard. Rules 410 and 11(e)(6) "creat[e], in
effect, a privilege of the defendant," 2 J. Weinstein & M.
Berger, Weinstein's Evidence , 410[05], p. 410-43 (1994), and, like
other evidentiary privileges, this one may be waived or varied at
the defendant's request. The Rules provide that statements made in
the course of plea discussions are inadmissible "against" the
defendant, and thus leave open the possibility that a defendant may
offer such statements into evidence for his own tactical advantage.
Indeed, the Rules contemplate this result in permitting admission
of statements made "in any proceeding wherein another statement
made in the course of the same ... plea discussions
has been
introduced and the statement
206
ought in fairness be considered contemporaneously with it." Fed.
Rule Evid. 410(i) (emphasis added); accord, Fed. Rule Crim. Proc.
11(e)(6)(i). Thus, the plea-statement Rules expressly contemplate a
degree of party control that is consonant with the background
presumption of waivability.4
B
Respondent also contends that waiver is fundamentally
inconsistent with the Rules' goal of encouraging voluntary
settlement. See Advisory Committee's Notes on Fed. Rule Evid. 410
(purpose of Rule is "promotion of disposition of criminal cases by
compromise"). Because the prospect of waiver may make defendants
"think twice" before entering into any plea negotiation, respondent
suggests that enforcement of waiver agreements acts "as a brake,
not as a facilitator, to the plea-bargain process." Brief for
Respondent 23, n. 17. The Ninth Circuit expressed similar concerns,
noting that Rules 410 and 11(e)(6) "aid in obtaining thee]
cooperation" that is often necessary to identify and prosecute the
leaders of a criminal conspiracy and that waiver of the protections
of the Rules "could easily have a chilling effect on the entire
plea bargaining process." 998 F. 2d, at 1455. According to the
Ninth Circuit, the plea-statement Rules "permit the plea bargainer
to maximize what he has 'to sell'" by preserving "the ability to
withdraw from the bargain proposed by the prosecutor without being
harmed by any of his
4 The Ninth Circuit relied on
Brooklyn Savings Bank v.
O'Neil, 324 U.
S. 697 (1945), but that case is easily distinguishable in this
regard.
Brooklyn Savings Bank held that certain statutory
entitlements guaranteed to employees by the Fair Labor Standards
Act of 1938 were unwaivable because the structure and legislative
history of the Act evinced a specific "legislative policy" of
"prevent[ing] private contracts" on such matters.
Id., at
706. Respondent has identified nothing in the structure or history
of the plea-statement Rules that suggests that they were aimed at
preventing private bargaining; in fact, the above discussion
suggests that the Rules adopt a contrary view.
207
statements made in the course of an aborted plea bargaining
session."
Ibid.
We need not decide whether and under what circumstances
substantial "public policy" interests may permit the inference that
Congress intended to override the presumption of waivability, for
in this case there is no basis for concluding that waiver will
interfere with the Rules' goal of encouraging plea bargaining. The
court below focused entirely on the
defendant's incentives
and completely ignored the other essential party to the
transaction: the prosecutor. Thus, although the availability of
waiver may discourage some defendants from negotiating, it is also
true that prosecutors may be unwilling to proceed without it.
Prosecutors may be especially reluctant to negotiate without a
waiver agreement during the early stages of a criminal
investigation, when prosecutors are searching for leads and
suspects may be willing to offer information in exchange for some
form of immunity or leniency in sentencing. In this "cooperation"
context, prosecutors face "painfully delicate" choices as to
"whether to proceed and prosecute those suspects against whom the
already produced evidence makes a case or whether to extend
leniency or full immunity to some suspects in order to procure
testimony against other, more dangerous suspects against whom
existing evidence is flimsy or nonexistent." Hughes, Agreements for
Cooperation in Criminal Cases, 45 Vand. L. Rev. 1, 15 (1992).
Because prosecutors have limited resources and must be able to
answer "sensitive questions about the credibility of the testimony"
they receive before entering into any sort of cooperation
agreement,
id., at 10, prosecutors may condition cooperation
discussions on an agreement that the testimony provided may be used
for impeachment purposes. See Thompson & Sumner, Structuring
Informal Immunity, 8 Crim. Just. 16, 19 (spring 1993). If
prosecutors were precluded from securing such agreements, they
might well decline to enter into cooperation discussions in the
first place
208
and might never take this potential first step toward a plea
bargain.5
Indeed, as a logical matter, it simply makes no sense to
conclude that mutual settlement will be encouraged by precluding
negotiation over an issue that may be particularly important to one
of the parties to the transaction. A sounder way to encourage
settlement is to permit the interested parties to enter into
knowing and voluntary negotiations without any arbitrary limits on
their bargaining chips. To use the Ninth Circuit's metaphor, if the
prosecutor is interested in "buying" the reliability assurance that
accompanies a waiver agreement, then precluding waiver can only
stifle the market for plea bargains. A defendant can "maximize"
what he has to "sell" only if he is permitted to offer what the
prosecutor is most interested in buying. And while it is certainly
true that prosecutors often need help from the small fish in a
conspiracy in order to catch the big ones, that is no reason to
preclude waiver altogether. If prosecutors decide that certain
crucial information will be gained only by preserving the
inadmissibility of plea statements, they will agree to leave intact
the exclusionary provisions of the plea-statement Rules.
5We cannot agree with the dissent's conclusion that the policies
expressed in the Advisory Committee's Notes to the plea-statement
Rules indicate congressional animosity toward waivability. The
Advisory Committee's Notes
always provide some policy
justification for the exclusionary provisions in the Rules, yet
those policies merely justify the default rule of exclusion; they
do not mean that the parties can never waive the default rule.
Indeed, the dissent is unwilling to accept the logical result of
its approach, which would require a wholesale rejection of the
background presumption of party control over evidentiary
provisions. Hearsay, for example, is generally excluded because it
tends to lack "trustworthiness," see Advisory Committee's Notes on
Article VIII of the Fed. Rules of Evid., 28 U. S. C. App., p. 770,
yet even the dissent concedes that the hearsay rules are "waivable
beyond any question,"
post, at 212. Thus, the mere existence
of a policy justification for the plea-statement Rules cannot
provide a sound basis for rejecting the background presumption of
waivability.
209
In sum, there is no reason to believe that allowing negotiation
as to waiver of the plea-statement Rules will bring plea bargaining
to a grinding halt; it may well have the opposite effect.6
Respondent's unfounded policy argument thus provides no basis for
concluding that Congress intended to prevent criminal defendants
from offering to waive the plea-statement Rules during plea
negotiation.
C
Finally, respondent contends that waiver agreements should be
forbidden because they invite prosecutorial overreaching and abuse.
Respondent asserts that there is a "gross disparity" in the
relative bargaining power of the parties to a plea agreement and
suggests that a waiver agreement is "inherently unfair and
coercive." Brief for Respondent 26. Because the prosecutor retains
the discretion to "reward defendants for their substantial
assistance" under the Sentencing Guidelines, respondent argues that
defendants face an "'incredible dilemma'" when they are asked to
accept waiver as the price of entering plea discussions.
Ibid. (quoting
Green v.
United States,
355 U. S. 184,
193 (1957)).
The dilemma flagged by respondent is indistinguishable from any
of a number of difficult choices that criminal defendants face
every day. The plea bargaining process neces-
6 Respondent has failed to offer any empirical support for his
apocalyptic predictions, and data compiled by the Administrative
Office of the United States Courts appear to contradict them. Prior
to the Ninth Circuit's decision in this case (when, according to
the Solicitor General, federal prosecutors in that Circuit used
waiver agreements like the one invalidated by the court below, see
Pet. for Cert. 10-11), approximately 92.2% of the convictions in
the Ninth Circuit were secured through pleas of guilty or
nolo
contendere. Annual Report of the Director, Administrative
Office of the United States Courts, Judicial Business of the United
States Courts 278 (1992) (Table D-7). During that same period,
about 88.8% of the convictions in all federal courts were secured
by voluntary pleas.
Id., at 276.
210
sarily exerts pressure on defendants to plead guilty and to
abandon a series of fundamental rights, but we have repeatedly held
that the government "may encourage a guilty plea by offering
substantial benefits in return for the plea."
Corbitt v.
New Jersey, 439 U. S. 212, 219
(1978). "While confronting a defendant with the risk of more severe
punishment clearly may have a 'discouraging effect on the
defendant's assertion of his trial rights, the imposition of these
difficult choices [is] an inevitable' -and permissible'attribute of
any legitimate system which tolerates and encourages the
negotiation of pleas.'"
Bordenkircher v.
Hayes,
434 U. S. 357,
364 (1978) (quoting
Chaffin v.
Stynchcombe, 412 U. S. 17, 31
(1973)).
The mere potential for abuse of prosecutorial bargaining power
is an insufficient basis for foreclosing negotiation altogether.
"Rather, tradition and experience justify our belief that the great
majority of prosecutors will be faithful to their duty."
Newton v.
Rumery, 480 U. S. 386, 397 (1987)
(plurality opinion); see also
United States v.
Chemical
Foundation, Inc., 272 U. S. 1, 14-15 (1926)
("[I]n the absence of clear evidence to the contrary, courts
presume that [public officers] have properly discharged their
official duties"). Thus, although some waiver agreements "may not
be the product of an informed and voluntary decision," this
possibility "does not justify invalidating
all such
agreements."
Newton, supra, at 393 (majority opinion).
Instead, the appropriate response to respondent's predictions of
abuse is to permit case-by-case inquiries into whether waiver
agreements are the product of fraud or coercion. We hold that
absent some affirmative indication that the agreement was entered
into unknowingly or involuntarily, an agreement to waive the
exclusionary provisions of the plea-statement Rules is valid and
enforceable.
IV
Respondent conferred with his lawyer after the prosecutor
proposed waiver as a condition of proceeding with the plea
211
discussion, and he has never complained that he entered into the
waiver agreement at issue unknowingly or involuntarily. The Ninth
Circuit's decision was based on its
per se rejection of
waiver of the plea-statement Rules. Accordingly, the judgment of
the Court of Appeals is reversed.
It is so ordered.
JUSTICE GINSBURG, with whom JUSTICE O'CONNOR and JUSTICE BREYER
join, concurring.
The Court holds that a waiver allowing the Government to impeach
with statements made during plea negotiations is compatible with
Congress' intent to promote plea bargaining. It may be, however,
that a waiver to use such statements in the case in chief would
more severely undermine a defendant's incentive to negotiate, and
thereby inhibit plea bargaining. As the Government has not sought
such a waiver, we do not here explore this question.
JUSTICE SOUTER, with whom JUSTICE STEVENS joins, dissenting.
This case poses only one question: did Congress intend to create
a personal right subject to waiver by its individual beneficiaries
when it adopted Rule 410 of the Federal Rules of Evidence and Rule
11(e)(6) of the Federal Rules of Criminal Procedure, each Rule
providing that statements made during plea discussions are
inadmissible against the defendant except in two carefully
described circumstances? The case raises no issue of policy to be
settled by the courts, and if the generally applicable (and
generally sound) judicial policy of respecting waivers of rights
and privileges should conflict with a reading of the Rules as
reasonably construed to accord with the intent of Congress, there
is no doubt that congressional intent should prevail. Because the
majority ruling is at odds with the intent of Congress and will
render the Rules largely dead letters, I respectfully dissent.
212
At first glance, the question of waivability may seem short on
substance, given the unconditional language of the two virtually
identical Rules, un softened by any provision for waiver or
allusion to that possibility:
"Except as otherwise provided in this rule, evidence ... is not
... admissible against the defendant who ... was a participant in
... plea discussions [of]
"any statement made in the course of plea discussions with an
attorney for the prosecuting authority which do not result in a
plea of guilty ... [subject to two stated exceptions]." Fed. Rule
Evid. 410.
Believers in plain meaning might be excused for thinking that
the text answers the question. But history may have something to
say about what is plain, and here history is not silent. If the
Rules are assumed to create only a personal right of a defendant,
the right arguably finds itself in the company of other personal
rights, including constitutional ones, that have been accepted time
out of mind as being freely waivable. See,
e. g.,
Johnson v.
Zerbst, 304 U. S. 458, 465 (1938)
(Sixth Amendment right to counsel may be waived). The possibility
that the Rules in question here do create such a personal right
must, indeed, be taken seriously if for no other reason than that
the Rules of Evidence contain other bars to admissibility equally
uncompromising on their face but nonetheless waivable beyond any
question. See Fed. Rule Evid. 802 (hearsay); Fed. Rule Evid. 1002
(best evidence).
The majority comes down on the side of waivability through
reliance on the general presumption in favor of recognizing waivers
of rights, including evidentiary rights. To be sure, the majority
recognizes that the presumption does not necessarily resolve the
issue before us, and the majority opinion describes some
counterexamples of rights that are insulated against waiver, at
least when waiver is expressly
213
prohibited or limited in terms that speak of waiver expressly.
See
Crosby v.
United States, 506 U. S. 255 (1993);
Smith v.
United States, 360 U. S. 1 (1959). Still,
the majority seems to assume that the express-waiver cases describe
the only circumstances in which the recognition of waiver is
foreclosed, and since the Rules in question here say nothing about
"waiver" as such, the majority finds that fact really to be the end
of the matter.
If there were nothing more to go on here, I, too, would join the
majority in relying on the fallback rule of permissible waiver. But
there is more to go on. There is, indeed, good reason to believe
that Congress rejected the general rule of waivability when it
passed the Rules in issue here, and once the evidence of such
congressional intent is squarely faced, we have no business but to
respect it (or deflect it by applying some constitutionally
mandated requirement of clear statement). There is, of course, no
claim in this case that Congress should be hobbled by any clear
statement rule, and the result is that we are bound to respect the
intent that the Advisory Committee's Notes to the congressionally
enacted Rules reveal. See
Williamson v.
United
States, 512 U. S.
594, 614-615 (1994) (KENNEDY, J., concurring in judgment)
(citing cases in which Advisory Committee's Notes are taken as
authoritative evidence of intent).
The fact underlying those Notes, and the fact of which all
congressional and judicial action must take account in dealing with
the possible evidentiary significance of plea discussions, is that
the federal judicial system could not possibly litigate every civil
and criminal case filed in the courts. The consequence of this is
that plea bargaining is an accepted feature of the criminal justice
system, and, "[p]roperly administered, it is to be encouraged."
Santobello v.
New York, 404 U. S. 257, 260
(1971). Thus the Advisory Committee's Notes on Rule 410 explained
that "[e]xclusion of offers to plead guilty or
nolo has as
its purpose the promotion of disposition of criminal cases by
compromise." 28 U. S. C. App.,
214
p. 750. "As with compromise offers generally, ... free
communication is needed, and security against having an offer of
compromise or related statement admitted in evidence effectively
encourages it."
Ibid. The Advisory Committee's Notes on Rule
11(e)(6) drew the same conclusion about the purpose of that Rule
and summed up the object of both Rules as being "to permit 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." 18 U. S. C. App.,
p. 745 (1979 Amendment) (internal quotation marks omitted).
These explanations show with reasonable clarity that Congress
probably made two assumptions when it adopted the Rules: pleas and
plea discussions are to be encouraged, and conditions of
unrestrained candor are the most effective means of encouragement.
The provisions protecting a defendant against use of statements
made in his plea bargaining are thus meant to create something more
than a personal right shielding an individual from his imprudence.
Rather, the Rules are meant to serve the interest of the federal
judicial system (whose resources are controlled by Congress), by
creating the conditions understood by Congress to be effective in
promoting reasonable plea agreements. Whether Congress was right or
wrong that unrestrained candor is necessary to promote a reasonable
number of plea agreements, Congress assumed that there was such a
need and meant to satisfy it by these Rules. Since the zone of
unrestrained candor is diminished whenever a defendant has to stop
to think about the amount of trouble his openness may cause him if
the plea negotiations fall through, Congress must have understood
that the judicial system's interest in candid plea discussions
would be threatened by recognizing waivers under Rules 410 and
11(e)(6). See ABA Standards for Criminal Justice 14-3.4, commentary
(2d ed. 1980) (a rule contrary to the one adopted by Congress
"would discourage plea negotiations and agreements, for defendants
would have
215
to be constantly concerned whether, in light of their plea
negotiation activities, they could successfully defend on the
merits if a plea ultimately was not entered"). There is, indeed, no
indication that Congress intended merely a regime of such limited
openness as might happen to survive market forces sufficient to
supplant a default rule of inadmissibility. Nor may Congress be
presumed to have intended to permit waivers that would undermine
the stated policy of its own Rules.
Brooklyn Savings Bank v.
O'Neil, 324 U.
S. 697, 704 (1945) ("Where a private right is granted in the
public interest to effectuate a legislative policy, waiver of a
right so charged or colored with the public interest will not be
allowed where it would thwart the legislative policy which it was
designed to effectuate").
It bears emphasizing that I would not suggest that there is only
one reasonable balance possible between society's interest in
encouraging compromise (which Congress thought to be served most
effectively by refusing to recognize waivers of rights under these
Rules) and society's interest in providing a vigorous adversary
system when cases are tried (which may be served by recognizing
waivers). The majority may be right that a better balance could
have been struck than the one Congress intended. The majority may
also be correct as a matter of policy that enough pleas will result
even if parties are allowed to make their own rule of admissibility
by agreement, with prosecutors refusing to talk without a
defendant's waiver (unless such refusal overloads the system beyond
its capacity for trials) and defendants refusing to waive (unless
they are desperate enough to forgo their option to be tried without
fear of compromising statements if the plea negotiations fail). But
whether the majority is right or wrong on either score is beside
the point; the policy it endorses is not the policy that Congress
intended when it enacted the Rules. See
Touche Ross &
Co. v.
Redington, 442 U. S. 560, 578 (1979)
("The ultimate question is one of congressional intent, not one of
whether this Court thinks
216
that it can improve upon the statutory scheme that Congress
enacted into law").
The unlikelihood that Congress intended the modest default rule
that the majority sees in Rules 11 (e) (6) and 410 looms all the
larger when the consequences of the majority position are pursued.
The first consequence is that the Rules will probably not even
function as default rules, for there is little chance that they
will be applied at all. Already, standard forms indicate that many
federal prosecutors routinely require waiver of Rules 410 and
11(e)(6) rights before a prosecutor is willing to enter into plea
discussions. Pet. for Cert. 10-11. See also
United States v.
Stevens, 935 F. 2d 1380, 1396 (CA3 1991) ("Plea agreements
... commonly contain a provision stating that proffer information
that is disclosed during the course of plea negotiations is ...
admissible for purposes of impeachment"). As the Government
conceded during oral argument, defendants are generally in no
position to challenge demands for these waivers, and the use of
waiver provisions as contracts of adhesion has become accepted
practice. 1 Today's decision can only speed the heretofore
illegitimate process by which the exception has been swallowing the
Rules. See,
e. g., Guidry v.
Sheet Metal
Workers Nat. Pension Fund, 493 U. S. 365, 377 (1990)
(no exception should be made by Court because it would be too
difficult to "carve out an exception that would not swallow the
rule");
United States v.
Powell, 469 U. S. 57, 68 (1984)
(respondent's suggested exception to the
Dunn rule
"threat-
1 The argument that the plea-bargaining system still works even
though waiver has become the accepted practice does not answer the
question whether Congress intended to permit a waiver rule. The
Court's obligation is to interpret criminal procedure and
evidentiary rules according to congressional intent. If the
Government believes that the better rule is different from what is
currently the law, the Government can petition Congress to change
it. See
TVA v.
Hill, 437 U. S. 153, 194 (1978)
("Our individual appraisal of the wisdom or unwisdom of a
particular course consciously selected by the Congress is to be put
aside in the process of interpreting a statute").
217
ens to swallow the rule"). See also 23 C. Wright & K.
Graham, Federal Practice and Procedure 121-122, n. 7.3 (1994 Supp.)
("It would seem strange if the prosecutor could undermine the
judicial policy, now endorsed by Congress, of encouraging plea
bargaining by announcing a policy that his office will only plea
bargain with defendants who 'waive' the benefits of Rule 410").
Accordingly, it is probably only a matter of time until the Rules
are dead letters.
The second consequence likely to emerge from today's decision is
the practical certainty that the waiver demanded will in time come
to function as a waiver of trial itself. It is true that many (if
not all) of the waiver forms now employed go only to admissibility
for impeachment.2 But although the erosion of the Rules has begun
with this trickle, the majority's reasoning will provide no
principled limit to it. The Rules draw no distinction between use
of a statement for impeachment and use in the Government's case in
chief. If objection can be waived for impeachment use, it can be
waived for use as affirmative evidence, and if the Government can
effectively demand waiver in the former instance, there is no
reason to believe it will not do so just as successfully in the
latter. When it does, there is nothing this Court will legitimately
be able to do about it. The Court is construing a congressional
Rule on the theory that Congress meant to permit its waiver. Once
that point is passed, as it is today, there is no legitimate limit
on admissibility of a defendant's plea negotiation statements
beyond what the Constitution may independently impose or the
traf-
2 Waiver for impeachment use, however, has been applied broadly.
For example, plea statements have been used to impeach a
defendant's witnesses even where the defendant has chosen not to
testify. See
United States v.
Dortch, 5 F.3d
1056, 1069
(CA7 1993) ("[J]ust as the defendant must
choose whether to protect the proffer statements by not taking the
stand, the defendant must choose whether to protect the proffer by
carefully determining which lines of questioning to pursue with
different witnesses"), cert. pending
sub nom. Suess v.
United States, No. 93-7218.
218
fic may bear. Just what the traffic may bear is an open
question, but what cannot be denied is that the majority opinion
sanctions a demand for waiver of such scope that a defendant who
gives it will be unable even to acknowledge his desire to negotiate
a guilty plea without furnishing admissible evidence against
himself then and there. In such cases, the possibility of trial if
no agreement is reached will be reduced to fantasy. The only
defendant who will not damage himself by even the most restrained
candor will be the one so desperate that he might as well walk into
court and enter a naked guilty plea. It defies reason to think that
Congress intended to invite such a result, when it adopted a Rule
said to promote candid discussion in the interest of encouraging
compromise.
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