“A Waiver of the Trial Itself”: The Constitutional Threats of Extending United States v. Mezzanatto and Contractual Solutions

Abstract

Prosecutors and criminal defendants resolve most cases through plea agreements. Often these agreements contain waivers of Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410, which prevent the admission of statements made during plea discussions into evidence at criminal trial. In 1995, the U.S. Supreme Court in United States v. Mezzanatto held that such waivers are enforceable for impeachment purposes. Numerous U.S. Circuit Courts of Appeals have extended this holding by permitting the use of these statements for the prosecution’s rebuttal and case-in-chief. This Note asserts that the extension of Mezzanatto threatens the constitutional rights of criminal defendants. It suggests that courts apply contract law principles to render waiver clauses unenforceable for rebuttal purposes and for the prosecution’s case-in-chief because they are contrary to public policy.