In a case involving former Bear Stearns financier Jeffrey Epstein, the 11th Circuit refused to adopt a rule-based or common-law evidentiary privilege precluding from discovery plea negotiations between prosecutors and a criminal defendant. Doe v. United States, 2014 WL 1509015 (CTA11 Apr. 18, 2014). You may access the opinion here.
The U.S. Attorney’s office for the Southern District of Florida accepted prosecution of financier Jeffrey Epstein for allegedly sexually abusing several minor girls. You may read more about these charges in this New York Times story.
After “extensive plea negotiations” between Epstein’s lawyers, including Roy Black, and federal prosecutors, Epstein and the U.S. Government entered into a non-prosecution agreement under which the government would not pursue federal charges if Epstein pled guilty to state-law charges of solicitation of prostitution.
Two of Epstein’s victims later sued the federal government for not informing them of the plea negotiations as required by the Crime Victims’ Rights Act, 18 U.S.C. § 3771. The victims then moved to compel production of the correspondence between Epstein’s lawyers and prosecutors. Epstein and Black intervened to prevent disclosure, arguing that an evidentiary privilege precluded production of plea-negotiation correspondence.
FRE 410 Does not Create Privilege
Epstein first argued that Federal Rule of Evidence 410 created an evidentiary privilege protecting plea negotiations from disclosure. The Court quickly dismissed this argument because “Rule 410 governs the admissibility of plea negotiations, not the discoverability of them.” Privileges pertain to discoverability and Rule 410 is simply inapplicable.
No Common Law Plea-Negotiations Privilege
Epstein alternatively argued that the Court should recognize a federal common-law evidentiary privilege for plea negotiations. The Court acknowledged that FRE 501 empowers federal courts to continue the evolutionary development of evidentiary privileges, but also that courts generally disfavor “newly minted” privileges that contravene the principle that the public has a right to “every man’s evidence.”
The Court analyzed Epstein’s privilege request through the four factors enunciated in Jaffee v. Redmond, 510 U.S. 1, 10-15 (1996): whether the putative privilege (1) is rooted in the imperative need for confidence and trust; (2) serves the public interest; (3) promotes sufficiently important interests to outweigh the need for probative evidence; and (4) has any consensus among the states.
Noting that a prosecutor and a criminal defendant are adversaries and “do not enjoy a relationship of confidence and trust when they negotiate, the Court held that a plea-negotiations privilege did not meet any Jaffee criteria. In fact, the Court held that a plea-negotiations privilege would upset the admissibility balance of FRE 410, which permits introduction of plea negotiations into evidence in certain circumstances.