Wednesday, September 23, 2009
The Case-In-Chief Waiver: Fifth Circuit Becomes Third Federal Appellate Court To Read Mezzanatto In Broadest Sense
In relevant part, Federal Rule of Evidence 410 provides that
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or 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for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
In United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a criminal defendant can waive Rule 410 protection and make his otherwise excludable plea statements admissible to impeach him should he make contradictory statements at trial. The Court left open the question of whether a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence. Thereafter, a handful of federal appellate courts found that a defendant could make such a waiver by presenting evidence at trial contradicting his otherwise excludable plea statements, which would allow the prosecution to use his statements substantively to rebut the evidence elicited, i.e., the "rebuttal waiver."
Until a few days ago, however, only two federal appelate courts had found that a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence even when he did not present evidence at trial contradicting his otherwise excludable plea statements. But after the opinion of the Fifth Circuit in United States v. Sylvester, that number has risen to three.
In Sylvester, Donald Sylvester was charged with murder in connection with the killing of a federal witness. AUSA Maurice Landrieu explained to Sylvester that the Attorney General had the discretion to seek capital punishment and proposed that, in return for a full confession, Landrieu would ask permission to seek life imprisonment instead. Sylvester then waived his objection to the admission of incriminating statements at trial in the event that plea negotaitions failed and confessed, and Landrieu made the promised recommendation to the Attorney General. Thereafter, however, Sylvester changed his mind and decided to take his chances at trial.
After a full evidentiary hearing, the district judge then determined that the prosecution could admit Sylvester's incriminatory plea statements during its case-in-chief as substantive evidence of Sylvester's guilt. Sylvester was subsequently convicted, prompting his appeal to the Fifth Circuit on this evidentiary issue, leading that court to deal with a question of first impression for it: "whether the government may use a defendant's statements made in teh course of plea negotiations in its case-in-chief, when the defendant, as a condition to engaging in negotiations with the government, knowingly and voluntarily waived all rights to object to such use."
The court then noted that only two federal appellate courts -- the Eighth and D.C. Circuits -- had found that a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence during the prosecution's case-in-chief. According to the Fifth Circuit, however, these courts were right. The Fifth Circuit noted that the main purpose of Rule 410 is to encourage plea negotiations so that criminal cases can be "settled" rather than going to trial. And, according to the court, "case-in-chief" waiver would not (really) discourage defendants from engaging in plea negoations any more than "impeachment waiver" or "rebuttal waiver." According to the court,
it seems unlikely to us that any significant number of defendants would draw fine distinctions as to whether statements made in the course of plea negotiations could be used in the government's case-in-chief or only for impeachment or rebuttal. Even with such an exacting decisionmaker, the choice is somewhat illusory.
I fundamentally disagree. First, I disagree with the leap from "impeachment waiver" to "rebuttal waiver." A defendant, or more importantly, his attorney, could easily think that it is is worth it to make an "impeachment waiver" to get to the plea bargaining table, but not a "rebuttal waiver." Why? Well, the defendant doesn't have to testify at trial, and many defendants, especially those with prior records, indeed do not testify at trial. Therefore, it could easily make sense for a defendant to make an "impeachment waiver" with the knowledge that whatever he says during plea negotiations cannot be used against him at trial as long as he does not testify (and never be used against him substantively).
Second, I disagree with the leap from "rebuttal waiver" to "case-in-chief waiver." In Sylvester, the defendant claimed that the difference between the two was that the former would not allow for the admission of otherwise excludable plea statements if the defendant limited his defense to credibilty impeachment of government witnesses or essentially declines to wage a defense at all. The Fifth Circuit rejected this distinction with the conclusory conclusion that Sylvester had not conviced it that the distinction would be meaningful to a significant number of defendants.
My first response is, "Why not?" My second response is that there are more differences. Let's say that during plea negotiations, a defendant charged with murder admits to being at the crime scene but decides to end those negotiations before admitting guilt. With a "rebuttal waiver," the defendant's incriminatory statement cannot be introduced unless he presents evidence that he was not at the crime scene. Conversely, with a "case-in-chief" waiver, his incriminatory statement can be introduced even if the defendant presents no evidence on the issue. In other words, if the defendant stops short of admitting to committing the crime charged during plea negotiations, he can mount some type of defense and keep some of his plea statements out even with a "rebuttal waiver." With a "case-in-chief waiver," he cannot.