Cite as: 513 U. S. 196 (1995)
Souter, J., dissenting
ens to swallow the rule"). See also 23 C. Wright & K. Graham, Federal Practice and Procedure 121-122, n. 7.3 (1994 Supp.) ("It would seem strange if the prosecutor could undermine the judicial policy, now endorsed by Congress, of encouraging plea bargaining by announcing a policy that his office will only plea bargain with defendants who 'waive' the benefits of Rule 410"). Accordingly, it is probably only a matter of time until the Rules are dead letters.
The second consequence likely to emerge from today's decision is the practical certainty that the waiver demanded will in time come to function as a waiver of trial itself. It is true that many (if not all) of the waiver forms now employed go only to admissibility for impeachment.2 But although the erosion of the Rules has begun with this trickle, the majority's reasoning will provide no principled limit to it. The Rules draw no distinction between use of a statement for impeachment and use in the Government's case in chief. If objection can be waived for impeachment use, it can be waived for use as affirmative evidence, and if the Government can effectively demand waiver in the former instance, there is no reason to believe it will not do so just as successfully in the latter. When it does, there is nothing this Court will legitimately be able to do about it. The Court is construing a congressional Rule on the theory that Congress meant to permit its waiver. Once that point is passed, as it is today, there is no legitimate limit on admissibility of a defendant's plea negotiation statements beyond what the Constitution may independently impose or the traf-2 Waiver for impeachment use, however, has been applied broadly. For example, plea statements have been used to impeach a defendant's witnesses even where the defendant has chosen not to testify. See United States v. Dortch, 5 F. 3d 1056, 1069 (CA7 1993) ("[J]ust as the defendant must choose whether to protect the proffer statements by not taking the stand, the defendant must choose whether to protect the proffer by carefully determining which lines of questioning to pursue with different witnesses"), cert. pending sub nom. Suess v. United States, No. 93-7218.
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