Reviving "Dead Letters": Reimagining Federal Rule of Evidence 410 as a Conditional Privilege

Though understudied relative to its fellow specialized relevance rules, Federal Rule of Evidence 410 protects a crucial element of the criminal justice system: plea negotiations. As written, the rule prevents the admission of evidence gathered during plea discussions, which helps assure criminal def...

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Bibliographic Details
Published in:Vanderbilt law review Vol. 73; no. 3; pp. 857 - 887
Main Author: Cornick, Peter G
Format: Journal Article
Language:English
Published: Nashville Vanderbilt University, School of Law 01.04.2020
Vanderbilt Law Review
Subjects:
Attorney-client privilege
Attorneys
Case law
Convictions
Criminal law
Evidence
Evidence (Law)
Federal Rules of Evidence
Laws, regulations and rules
Plea bargaining
State court decisions
Trials
Waiver (Criminal procedure)
Waivers
United States > US
ISSN:0042-2533, 1942-9886
Online Access:Get full text
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Summary:Though understudied relative to its fellow specialized relevance rules, Federal Rule of Evidence 410 protects a crucial element of the criminal justice system: plea negotiations. As written, the rule prevents the admission of evidence gathered during plea discussions, which helps assure criminal defendants that their candid discussions with prosecutors will not harm them in any future proceeding. But the Supreme Court has greatly weakened Rule 410, permitting broad waiver of the rule's protections that run afoul of Congress's purpose in creating the rule and its plain language. In light of these developments, the Note argues that Rule 410 should be reconceptualized as a conditional privilege. Conditional privileges share many attributes with the more familiar absolute privileges, but conditional privileges often apply to communications with governmental entities and can be overcome by an ad hoc showing of necessity. This Note will elaborate on why and how Rule 410 should be reimagined as a conditional privilege and how this change will better effectuate Rule 410's original goals of promoting effective plea discussions.
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ISSN:0042-2533
1942-9886