United States v. Mezzanatto
115 S. Ct. 696 (1995)

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.


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 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. . . .

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 arrest. 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).


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,1 neither of which says anything about waiver, and thus concluded that Congress must have meant to preclude waiver agreements such as respondent’s. 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."

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 express enabling clause, we instead have adhered to the opposite presumption. . . . A criminal defendant may knowingly and

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).

voluntarily waive many of the most fundamental protections afforded by the Constitution. 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. . . .

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. Courts have "liberally enforced" agreements to waive various exclusionary rules of evidence. . . .

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 counsel or 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. During the course of trial, parties frequently decide to waive evidentiary objections, and such tactics are rountinely honored by trial judges. . . .


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 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.


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 fact-finding process that they may never be waived without irreparably "discredit[ing] the federal courts." [Citations omitted.] But enforcement of agreements like respondent’s plainly will not have that effect. The admission of plea statements for impeachment purposes enhances the truth-seeking function of trials and will result in more accurate verdicts. [Citations 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 in the verdict without risking institutional harm to the federal courts. . . .

Rules 410 and 11(e)(6) "creat[e], in effect, a privilege of the defendant," 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 ought in fairness be considered contemporaneously with it." Thus, the plea-statement Rules expressly contemplate a degree of party control that is consonant with the background presumption of waivability.


Respondent also contends that waiver is fundamentally inconsistent with the Rules’ goal of encouraging voluntary settlement. See Advisory Committee 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." The Ninth Circuit expressed similar concerns, noting that Rules 410 and 11(e)(6) "aid in obtaining th[e] 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." 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 statements made in the course of an aborted plea bargaining session."

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." 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, prosecutors may condition cooperation discussions on an agreement that the testimony provided may be used for impeachment purposes. If prosecutors were precluded from securing such agreements, they might well decline to enter into cooperation discussions in the first place 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

5. We cannot agree with the dissent’s conclusion that the policies expressed in the Advisory Committee Notes to the plea-statement Rules indicate congressional animosity toward waivability. The Advisory Committee 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 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." 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.

"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.

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. 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.


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." 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.

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 necessarily 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." . . .

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." . . . 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.


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. 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.

[Concurring opinion by Justice Ginsburg omitted.]

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. . . .


div1.gif (1531 bytes)
Home | Contents | Topical Index | Syllabi | Search | Contact Us | Professors' Pages
Cases | Problems | Rules | Statutes | Articles | Commentary