When the Government may use a defendant's statements from plea negotiations to rebut the defense at trial

QUESTIONS PRESENTED In United States v. Mezzanatto, 513 U.S. 196 (1995), this Court held that the Government may elicit waivers during the plea bargaining process enabling the Government to use a defendant’s statements to impeach a defendant’s contrary trial testimony notwithstanding the Congressional proscription against such evidence in FED. R. EvID. 410 and FED. R. CRIM. P. 11(f). The Government now regularly insists on extracting waivers that allow statements during plea negotiations to be used to rebut defense counsel’s presentation. The questions presented are: L When the Government has agreed not to use a defendant’s statements except to refute a defense at trial, may the Government only use those proffer statements when the defense advances specific factual assertions contradicted by the proffer, as is the case in the Second Circuit, or may the Government use the proffer statements whenever the defense disputes the charges or seeks to minimize or deflect responsibility, as is the case in the Third, Sixth, Seventh and Ninth Circuits. Il. Whether waivers that allow the Government to lighten its burden depending upon defense counsel’s litigation tactics — regardless of whether the defendant actually testifies or makes any false statement at trial — ii unconstitutionally undermine the zealous advocacy of defense counsel and impede counsel’s ability to subject the prosecution’s evidence to meaningful adversarial testing.