216
Souter, J., dissenting
that it can improve upon the statutory scheme that Congress enacted into law").
The unlikelihood that Congress intended the modest default rule that the majority sees in Rules 11(e)(6) and 410 looms all the larger when the consequences of the majority position are pursued. The first consequence is that the Rules will probably not even function as default rules, for there is little chance that they will be applied at all. Already, standard forms indicate that many federal prosecutors routinely require waiver of Rules 410 and 11(e)(6) rights before a prosecutor is willing to enter into plea discussions. Pet. for Cert. 10-11. See also United States v. Stevens, 935 F. 2d 1380, 1396 (CA3 1991) ("Plea agreements . . . commonly contain a provision stating that proffer information that is disclosed during the course of plea negotiations is . . . admissible for purposes of impeachment"). As the Government conceded during oral argument, defendants are generally in no position to challenge demands for these waivers, and the use of waiver provisions as contracts of adhesion has become accepted practice.1 Today's decision can only speed the heretofore illegitimate process by which the exception has been swallowing the Rules. See, e. g., Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U. S. 365, 377 (1990) (no exception should be made by Court because it would be too difficult to "carve out an exception that would not swallow the rule"); United States v. Powell, 469 U. S. 57, 68 (1984) (respondent's suggested exception to the Dunn rule "threat-1 The argument that the plea-bargaining system still works even though waiver has become the accepted practice does not answer the question whether Congress intended to permit a waiver rule. The Court's obligation is to interpret criminal procedure and evidentiary rules according to congressional intent. If the Government believes that the better rule is different from what is currently the law, the Government can petition Congress to change it. See TVA v. Hill, 437 U. S. 153, 194 (1978) ("Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute").
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