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No. 93-1340. Argued November 2, 1994-Decided January 18, 1995

Respondent was convicted on federal drug charges after being crossexamined, over his counsel's objection, about inconsistent statements that he had made during an earlier plea discussion. The Ninth Circuit reversed, holding that respondent's agreement that any statements he made in the plea discussion could be used at trial for impeachment purposes was unenforceable under Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6) (Rules or plea-statement Rules), which exclude from admission into evidence against a criminal defendant statements made during plea bargaining.

Held: An agreement to waive the plea-statement Rules' exclusionary provisions is valid and enforceable absent some affirmative indication that the defendant entered the agreement unknowingly or involuntarily. Pp.200-211.

(a) Contrary to the Ninth Circuit's conclusion, the Rules' failure to include an express waiver-enabling clause does not demonstrate Congress' intent to preclude waiver agreements such as respondent's. Rather, the Rules were enacted against a background presumption that legal rights generally, and evidentiary provisions specifically, are subject to waiver by voluntary agreement of the parties. See, e. g., Ricketts v. Adamson, 483 U. S. 1, 10; Sac and Fox Indians of Miss. in Iowa v. Sac and Fox Indians of Miss. in Okla., 220 U. S. 481, 488-489. Crosby v. United States, 506 U. S. 255, 259, and Smith v. United States, 360 U. S. 1, 9, distinguished. Respondent bears the responsibility of identifying some affirmative basis for concluding that the Rules depart from the presumption of waivability. Pp. 200-203.

(b) The three potential bases offered by respondent for concluding that the Rules are not consonant with the presumption of waivability(a) that the Rules establish a "guarantee [to] fair procedure" that cannot be waived, (b) that waiver is fundamentally inconsistent with the Rules' goal of encouraging voluntary settlement, and (c) that waiver agreements should be forbidden because they invite prosecutorial overreaching and abuse-are not persuasive. Instead of the per se rejection of waiver adopted by the Ninth Circuit, the appropriate approach is to permit case-by-case inquiries into whether waiver agreements are the


product of fraud or coercion. Here, respondent conferred with his lawyer after the prosecutor proposed waiver as a condition of proceeding with the plea discussion, and he has never complained that he entered into the waiver agreement at issue unknowingly or involuntarily. Pp. 203-211.

998 F.2d 1452, reversed.

THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, KENNEDY, GINSBURG, and BREYER, JJ., joined. GINSBURG, J., filed a concurring statement, in which O'CONNOR and BREYER, JJ., joined, post, p. 211. SOUTER, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 211.

Miguel A. Estrada argued the cause for the United States.

With him on the briefs were Solicitor General Days, Assistant Attorney General Harris, and Deputy Solicitor General Kneedler.

Mark R. Lippman, by appointment of the Court, 511 U. S. 1067, argued the cause and filed a brief for respondent. *

JUSTICE THOMAS delivered the opinion of the Court. Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6) provide that statements made in the course of plea discussions between a criminal defendant and a prosecutor are inadmissible against the defendant. The court below held that these exclusionary provisions may not be waived by the defendant. We granted certiorari to resolve a conflict among the Courts of Appeals, and we now reverse.


On August 1, 1991, San Diego Narcotics Task Force agents arrested Gordon Shuster after discovering a methamphetamine laboratory at his residence in Rainbow, California. Shuster agreed to cooperate with the agents, and a few hours

* John J. Cleary filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance.

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