5th Circuit Allows Waiver of Ban on Evidence from Plea Negotiations

The 5th Circuit has ruled that public policy considerations do not justify barring a prosecutor from eliciting a defendant's waiver of the ban on the admission of statements made during plea bargaining negotiations. The Court found permitting this waiver was a natural extension of the 1995 Supreme Court decision in United States v. Mezzanatto, 513 U.S. 196 (1995), enforcing a waiver with respect to impeachment evidence.

United States v. Sylvester, 5th Cir., September 18, 2009:

Now presented with a case-in-chief waiver, however, we can find no convincing reason for not extending Mezzanatto’s rationale to this case. Justice Thomas, writing for the Mezzanatto majority, set forth a framework for analyzing plea-statement waiver. He first discerned a “background presumption that legal rights generally, and evidentiary provisions specifically, are subject to waiver by voluntary agreement of the parties.” Thus, without affirmative indication that Congress intended to proscribe waiver of statutory protections, including evidentiary rules, voluntary agreements to waive these protections are presumptively enforceable. As for Rules 410 and 11(e)(6), Justice Thomas found no indication of congressional disfavor toward waiver, either in the rules’ text or in their attendant Advisory Committee’s Notes. Against this backdrop, Justice Thomas then explained that courts should examine the public policy justifications, if any, for departing from the norm. In Mezzanatto, he looked to three potential rationales for overriding the presumption of waivability. He rejected each.

Perhaps chief among these concerns is the integrity of the judicial system. Yes, “[t]here may be some evidentiary provisions that are so fundamental to the reliability of the fact-finding process that they may never be waived,” but, as Justice Thomas reasoned, “enforcement of agreements like respondent’s plainly will not have that effect.” This is because “admission of plea statements for impeachment purposes enhances the truth-seeking function of trials and will result in more accurate verdicts.” When the prosecution seeks to enforce a waiver allowing it to use plea statements for impeachment, the defendant “[u]nder any view of the evidence . . . has made a false statement, either to the prosecutor during the plea discussion or to the jury at trial.” “[M]aking the jury aware of the inconsistency will tend to increase the reliability of the verdict without risking institutional harm to the federal
courts.”

Nor is waiver at odds with Rule 410's goal of encouraging voluntary settlement, an argument that had persuaded the court of appeals. Mezzanatto cautions that focusing solely on the defendant’s incentives to plead guilty, as the court of appeals did, “completely ignored the other essential party to the transaction: the prosecutor.” Even if waiver discourages some defendants from negotiating, “it is also true that prosecutors may be unwilling to proceed without it.” Instead of precluding negotiation over an issue “[a] sounder way to encourage settlement is to permit the interested parties to enter into knowing and voluntary negotiations without any arbitrary limits to their bargaining chips.”

And, while defendants do face considerable pressure to plead guilty and to abandon many rights, Justice Thomas rejected the notion that waiver agreements invite prosecutorial overreaching and abuse. He explained that our criminal justice system presents many such loaded decisions for defendants–indeed the plea bargaining process necessarily exerts such pressure–and, absent specific evidence that the agreement was entered into unknowing or involuntarily, courts cannot infer abuse of prosecutorial bargaining power.