The Use of Plea Statement Waivers in Pretrial Agreements

AuthorAlexander Farsaad
PositionU.S. Marine Corps
I. Introduction
In United States v. Mezzanatto,1 the Supreme Court upheld the use of
a pretrial waiver of Federal Rule of Evidence (FRE) 410 and Federal
Rule of Criminal Procedure (FRCP) 11(e)(6) (“federal Rules”).2 The
federal Rules provide that statements made in the course of (1) guilty
pleas that are later withdrawn or (2) plea negotiations that do not result in
a guilty plea are inadmissible against the defendant who made the
statements.3 After Gary Mezzanatto was charged with possession of
methamphetamine with intent to distribute, he and his attorney attempted
to enter into plea negotiations with the prosecutor.4 Before the
negotiations began, the prosecutor told Mezzanatto that he “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
negotiations fell through.5 When negotiations did not result in a guilty
plea and the case went to trial, the prosecutor cross-examined
Mezzanatto on his inconsistent statements during the plea negotiations,
arguing that Mezzanatto had waived the protections of the federal Rules.6
In a 7-2 decision, the Supreme Court upheld the practice of demanding a
waiver of the federal Rules before entering into plea negotiations. Since
* U.S. Marine Corps. Presently assigned as Assistant Deputy Director, Judge Advocate
Division, Community Development Strategy & Plans, Headquarters, Marine Corps. This
article was submitted in partial completion of the Master of Laws requirements of the
61st Judge Advocate Officer Graduate Course at The Judge Advocate General’s Legal
Center and School, U.S. Army. The author would like to thank Major Rebecca Kliem,
U.S. Army, who helped tremendously in the preparation of this article.
1 United States v. Mezzanatto, 513 U.S. 196 (1995).
2 FED. R. EVID. 410; FED. R. CRIM. P. 11. At the time of Mezzanatto, the language of the
Federal Rules of Civil Procedure (FRCP) 11(e)(6) was identical to Federal Rule of
Evidence (FRE) 410. In 2002, FRCP 11(e)(6) was renumbered as FRCP 11(f) and the
text was amended to refer the reader to FRE 410. See infra note 48 and accompanying
3 FED. R. EVID. 410. Military Rule of Evidence (MRE) 410 is substantially identical.
See infra Part II.C.
4 Mezzanatto, 513 U.S. at 198.
5 Id.
6 Id. at 199.
that decision, commentators have widely criticized both the case and the
Although Mezzanatto dealt with a waiver that allowed a prosecutor
to use plea negotiation statements only for impeachment, federal
prosecutors have since expanded the practice to include demands for a
waiver of the federal Rules in order to allow the prosecutor to use the
accused’s statements in rebuttal or in the government’s case-in-chief.
Federal courts of appeals have uniformly upheld these expanded uses of
federal Rules waivers.8 Nevertheless, despite the extensive use of federal
Rules waivers in federal courts, the military justice system has not
adopted this practice. The implementation of such waivers is long
overdue in military practice. Using a waiver of Military Rule of
Evidence (MRE) 410 and Rule for Courts-Martial (RCM) 705(e)
(“military Rules”)9 in courts-martial comports with notions of freedom of
contract, is required by the UCMJ, and improves both the efficiency and
reliability of military criminal prosecutions.
Part II of this article covers the legal background and the current
state of the law. It discusses the context of plea bargaining, including the
recognition of pretrial agreements (PTAs)10 as contracts, and the
7 See, e.g., Michael S. Gershowitz, Waiver of the Plea-Statement Rules, 86 J. CRIM. L. &
CRIMINOLOGY 1439 (1996); Eric L. Dahlin, Note, Will Plea Bargaining Survive United
States v. Mezzanatto?, 74 OR. L. REV. 1365 (1995); Julia A. Keck, Note, United States v.
Sylvester: The Expansion of the Waiver of Federal Rule of Evidence 410 To Allow Case-
in-Chief Use of Plea Negotiation Statements, 84 TUL. L. REV. 1385 (2010); Pamela
Bennett Louis, Note and Comment, United States v. Mezzanatto: An Unheeded Plea to
Keep the Exclusionary Provisions of Federal Rule of Evidence 410 and Federal Rule of
Criminal Procedure 11(e)(6) Intact, 17 PACE L. REV. 231 (1996); Christopher P. Siegle,
Note, United States v. Mezzanatto: Effectively Denying Yet Another Procedural
Safeguard to “Innocent” Defendants, 32 TULSA L. J. 119 (2006); Note, Waiver—Plea
Negotiation Statements, 109 HARV. L. REV. 249 (1995).
8 E.g., United States v. Rebbe, 314 F.3d 402 (9th Cir. 2002) (rebuttal); United States v.
Mitchell, 633 F.3d 997 (10th Cir. 2011) (case-in-chief). See infra Part II.E.
MCM]; id. R.C.M. 705. Throughout this article, the term “federal Rules” will be used for
FRE 410 and FRCP 11(e), and the term “military Rules” will be used for MRE 410 and
RCM 705(e). However, when generically referring to both federal and military Rules,
the article will use the term “Rules.”
10 Both the UCMJ and the Manual for Courts-Martial refer to “pretrial agreements.” See,
e.g., UCMJ art. 63 (2012); MCM, supra note 9, R.C.M. 705. Civilian practice refers to
pre-trial agreements (PTAs) as “plea agreements.” See, e.g., FED. R. CRIM. P. 11. The
drafters of RCM 910 and its analysis left the term “plea agreement” in place through
almost all of the rule when adapting it from the FRCP. See MCM, supra note 9, R.C.M.
910; id. R.C.M. 705 analysis at A21-40–42. Consistent with military usage, this article
different types of agreements made. Part II also addresses the history
behind the federal and military Rules, as well as guilty plea procedures in
the military. Part III of this article delves into the controversy
surrounding the use of Rules waivers, advancing three main arguments
for allowing the practice and discussing some procedural protections.
Finally, Part IV offers a means of analyzing waivers of the military Rules
in military courts.
II. Background
A. Plea Bargaining, Pretrial Agreements, and Contract Law
Beginning in the 1970s, the Supreme Court stressed the importance
of plea bargaining because, among other things, the practice allows for a
“prompt and largely final disposition of most criminal cases.”11 To
arrive at an agreement that results in a final disposition, the parties must
engage in negotiations. These negotiations do not occur in a vacuum, but
in the context of the potential sentence and charges. These two situations
are referred to as penalty bargaining and cooperation bargaining.12
uses the term pretrial agreement or PTA throughout.
11 Santobello v. New York, 404 U.S. 257, 261 (1971) (“Disposition of charges after plea
discussions is not only an essential part of the process but a highly desirable part for
many reasons.”); accord Blackledge v. Allison, 431 U.S. 63, 71 (1977) (“[T]he guilty
plea and the often concomitant plea bargain are important components of this country's
criminal justice system. Properly administered, they can benefit all concerned.”); Brady
v. United States, 397 U.S. 742, 752 (1970) (listing the benefits to both the accused and
the government in guilty pleas); Michael D. Cicchini, Broken Government Promises: A
Contract-Based Approach to Enforcing Plea Bargains, 38 N.M. L. REV. 159, 161–62
(2008) (“The reality is that the prosecutor, the government, and society in general reap
tremendous benefits from plea bargaining . . .”); see also Lafler v. Cooper, 132 S. Ct.
1376, 1388 (2012) (“[C]riminal justice today is for the most part a system of pleas, not a
system of trials.”); Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract,
101 YALE L.J. 1909, 1912 (1992) (“To a large extent . . . horse trading determines who
goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the
criminal justice system; it is the criminal justice system.”). In federal district court in
fiscal year 2012, 89% of all accused pled guilty and 97.6% of convictions resulted from
STATES COURTS tbl.D-4 (2012), available at
12 Eric Rasmussen, Mezzanatto and the Economics of Self-Incrimination, 19 CARDOZO L.
REV. 1541, 1552–54 (1998); see also Transcript of Oral Argument, United States v.
Mezzanatto, 513 U.S. 196 (1995) (93-1340), available at http://www.supremeobserver.
com/cases/US/513/513US196/oat-513us196-19941102.htm (argument of Solicitor
General) (describing charge bargaining and cooperation bargaining).

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