§ 16.08 WAIVER

• Jurisdiction: North Carolina

§ 16.08. WAIVER

In United States v. Mezzanatto,³⁸ the Supreme Court ruled that an accused could waive the protections afforded by Rule 410. After his arrest for drug offenses, the defendant and his attorney requested a meeting with the prosecutor. As a condition to proceeding with discussions, the prosecutor required the defendant 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. After consulting with counsel, Mezzanatto agreed. The plea discussions eventually broke down, and the defendant was tried. When he took the stand to declare his innocence, the prosecutor used the plea discussion statements to impeach him during cross-examination.

Noting that evidentiary stipulations and waiver of objections are common in litigation, the Court saw nothing wrong with this type of waiver: ³⁹ "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. . . . During the course of trial, parties frequently decide to waive evidentiary objections, and such tactics are routinely honored by trial judges."⁴⁰

Mezzanatto involved the impeachment of the accused. Several courts have extended it to permit rebuttal of defense witnesses even if the accused does not testify.⁴¹ Other courts have gone further and allowed admission of proffer statements in the prosecution's case-in-chief.⁴² The accused, of course, is free to negotiate a more limited waiver.⁴³ In addition, courts have grappled with the type of opening statement or defense evidence that would open the door to admission of proffer statements:

Thus, a defense argument that simply challenged the sufficiency of government proof on elements such as knowledge, intent, identity, etc., would not trigger the waiver here at issue. On the other hand, a statement of fact in a defense opening, such as the statement in this case unequivocally identifying Jamal Barrow as the real perpetrator of the charged crimes, does qualify as a factual assertion within the four corners of the waiver provision.⁴⁴

The Mezzanatto rationale has broad implications, encompassing most evidence rules. The Court did recognize that there may be exceptions to the presumption of waivability, but the party seeking an exception bears...