208
Opinion of the Court
and might never take this potential first step toward a plea
bargain.5
Indeed, as a logical matter, it simply makes no sense to conclude that mutual settlement will be encouraged by precluding negotiation over an issue that may be particularly important to one of the parties to the transaction. A sounder way to encourage settlement is to permit the interested parties to enter into knowing and voluntary negotiations without any arbitrary limits on their bargaining chips. To use the Ninth Circuit's metaphor, if the prosecutor is interested in "buying" the reliability assurance that accompanies a waiver agreement, then precluding waiver can only stifle the market for plea bargains. A defendant can "maximize" what he has to "sell" only if he is permitted to offer what the prosecutor is most interested in buying. And while it is certainly true that prosecutors often need help from the small fish in a conspiracy in order to catch the big ones, that is no reason to preclude waiver altogether. If prosecutors decide that certain crucial information will be gained only by preserving the inadmissibility of plea statements, they will agree to leave intact the exclusionary provisions of the plea-statement Rules.
5 We cannot agree with the dissent's conclusion that the policies expressed in the Advisory Committee's Notes to the plea-statement Rules indicate congressional animosity toward waivability. The Advisory Committee's Notes always provide some policy justification for the exclusionary provisions in the Rules, yet those policies merely justify the default rule of exclusion; they do not mean that the parties can never waive the default rule. Indeed, the dissent is unwilling to accept the logical result of its approach, which would require a wholesale rejection of the background presumption of party control over evidentiary provisions. Hearsay, for example, is generally excluded because it tends to lack "trustworthiness," see Advisory Committee's Notes on Article VIII of the Fed. Rules of Evid., 28 U. S. C. App., p. 770, yet even the dissent concedes that the hearsay rules are "waivable beyond any question," post, at 212. Thus, the mere existence of a policy justification for the plea-statement Rules cannot provide a sound basis for rejecting the background presumption of waivability.
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