627. Inadmissibility of Pleas—Federal Rule of Criminal Procedure 11(e)(6)

Federal Rule of Criminal Procedure 11(e) bars the use in evidence of the following (with exceptions) in any civil or criminal proceeding against the person who made them:

1. a plea of guilty which was later withdrawn;
2. a plea of nolo contendere;
3. any statement made in the course of any proceeding under Federal Rule of Criminal Procedure 11 regarding a plea of guilty or nolo contendere; and
4. any statement made in the course of plea discussions with an attorney for the government which discussions do not result in a plea of guilty or result in a plea of guilty later withdrawn.

Such evidence is admissible, however,

1. in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness to be considered contemporaneously with it; or
2. in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

This is modeled after Federal Rule of Evidence 410. The Supreme Court has held that the protections of Federal Rule of Criminal Procedure 11(e)(6) can be waived, at least to the extent of permitting use of statements made during plea negotiations for impeachment. See United States v. Mezzanatto, 115 S. Ct. 797 (1995).

[cited in JM 9-16.001; JM 9-16.400]