"Make Him an Offer He Can't Refuse" - Mezzanatto Waivers as Lynchpin of Prosecutorial Overreach

Plea bargaining is the dominant means of disposing of criminal charges in the United States, in both state and federal courts. This administrative mechanism has become a system that is grossly abusive of individual rights, leading to many well-known maladies of the criminal justice system, which include overcharging, overincarceration, convictions on charges that would likely fail at trial, and even conviction of “factually innocent” persons. Instrumental in the abuses of plea bargaining is the so-called Mezzanatto waiver, which takes its name from a 1995 Supreme Court decision that approved the practice of getting defendants to agree that anything they say in negotiations with prosecutors can be admitted against them if a trial ensues, despite Evidence Rule 410, which provides that such statements are inadmissible. These waivers, which are largely overlooked in the vast literature that criticizes plea bargaining, are in fact lynchpins in a system that is horrifying to contemplate. These waivers mean that the very act of negotiation almost guarantees conviction of something, imposing one-sided risks on defendants that can only benefit prosecutors. They amount to a kind of palpable unfairness that the system tolerates, and they not only contribute to the maladies described above, but they produce rulings (if a trial goes forward) that admit unreliable statements. There are many reasons why these waivers should be disapproved, including policy arguments (they are unfair, produce bad results and unreliable statements) and arguments based on contract law, on Rule 410 itself, on a widely-recognized but seldom enforced “unitary” principle and on the “Mezzanatto proviso” (a widely ignored term in the decision itself). This Article explores the origins and operation of Mezzanatto waivers, examines the reasons for disapproving them and taking a new direction, and offers a reply to standard arguments that prosecutors need them (they really don’t and have other means to hold defendants to their bargains).