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37 Colum. J.L. & Soc. Probs. 1 (2003-2004)
Queen for a Day Agreements and the Proper Scope of Permissible Waiver of the Federal Plea-Statement Rules

handle is hein.journals/collsp37 and id is 11 raw text is: Queen for a Day Agreements and the Proper Scope of Permissible Waiver of the Federal Plea-Statement Rules BENJAMIN A. NAFrALIS* Proffer agreements, colloquially known as Queen for a Day agreements, govern the conditions under which prospective criminal defendants and the government agree to conduct an interview. These agreements generally require criminal defendants, who hope to gain leniency through a reduced sentence or immunity grant, to waive their plea-statement rights, and they permit, in certain circumstances, the prosecution to introduce previously inadmissible proffer statements at trial. Since the Supreme Court's deci- sion in United States v. Mezzanatto, the terms of Queen for a Day agree- ments have grown in scope and restrictiveness, dramatically extending the range of use of proffer statements by the government. Absent clear guid- ance, federal courts presently vary in their approach to waiver of the plea- statement Rules and have upheld the use of proffer statements not only for impeachment, but also for rebuttal (even where the defendant has not testi- fied) and as substantive evidence in the government's case-in-chief (solely in response to defense counsel advocacy). This Note contends that the scope of permissible waiver of Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11() requires sharper articulation. Specifi- cally, it argues that the terms of Queen for a Day agreements should be limited to permit waiver of the plea-statement Rules only for the purposes of (1) impeachment of a criminal defendant who testifies at variance with the proffer, and (2) rebuttal of defense witness testimony that materially and explicitly conflicts with the proffer. The scope of permissible waiver * Head Writing & Research Editor, COLUM. J.L. & SOC. PROBS., 2003-2004. The author is grateful to Professors John C. Coffee, Jr., Robert A. Ferguson, Daniel C. Richman, and Paul Shechtman for their comments and invaluable suggestions. Special thanks to the Journal staff and editors for their hard work in bringing the Note to final form, in particular Jacob J. Waldman, and finally to Olivia A. Radin.

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