Text extracted via OCR from the original document. May contain errors from the scanning process.
in the conjunction of Rule 410, the work-product privilege, and the Sixth Amendment right to
the effective assistance of counsel in the plea bargaining process,” but this novel argument fails
too. As explained above, Rule 410 does not create a privilege and the intervenors waived any
work-product privilege. The intervenors concede too that the right to counsel under the Sixth
Amendment had not yet attached when the correspondence was exchanged. Lumley v, City of
Dade City, Fla., 327 F.3d 1186, 1195 (1 1th Cir. 2003) (“{TJhe Sixth Amendment right to
counsel ordinarily does not arise until there is a formal commitment by the government to
prosecute,” such as a “formal charge, preliminary hearing, indictment, information, or
arraignment.”). The “conjunctive” power of three false claims of privilege does not rescue the
correspondence from disclosure. . ..
The Supreme Court has identified several considerations relevant to whether a court should
recognize an evidentiary privilege—the needs of the public, whether the privilege is rooted in the
imperative for confidence and trust, the evidentiary benefit of the denial of the privilege, and any
consensus among the states, Jaffee v. Redmond, 518 U.S. 1, 10-15 (1996}—but none of these
considerations weighs in favor of recognizing a new privilege to prevent discovery of the plea
negotiations. Although plea negotiations are vital to the functioning of the criminal justice
system, a prosecutor and target of a criminal investigation do not enjoy a relationship of
confidence and trust when they negotiate. Their adversarial relationship, unlike the confidential
relationship of a doctor and patient or attorney and client, warrants no privilege beyond the terms
of Rule 410. See Jaffee, 518 U.S. at 10. But the victims would enjoy an evidentiary benefit from
the disclosure of plea negotiations to prove whether the United States violated their rights under
the Act.
Moving forward, this case raises the important issue of what kinds of remedies are available for
violations of the Crime Victims’ Rights Act. Our complaint alleges that, prodded by Epstein, the
federal prosecutors deliberately concealed the sweetheart plea deal they had reached with him to
avoid public criticism of the deal. I am hopeful that in future district court proceedings, we will
be able to prove that clear violation of the CVRA and then obtain the remedy of invalidating the
illegally-negotiated plea deal.
Paul G. Cassell teaches criminal law, criminal procedure, and crime victims’ rights at the S.J.
Quinney College of Law at the University of Utah. Before coming to Utah, he was President of
the Stanford Law Review, a law clerk for then-Judge Antonin Scalia on the D.C, Circuit and for
Chief Justice Warren Burger of the Supreme Court, an Associate Deputy Attorney General with
the U.S. Justice Department (1986-88), and an Assistant U.S. Attorney for the Eastern District of
Virginia (1988 to 1991). Cassell joined the faculty at the University of Utah College of Law in
1992, where he taught full time until he was sworn in as a U.S. District Court Judge for the
District of Utah in 2002. In 2007, he resigned his judgeship to return full time to the College of
Law, to teach, write, and litigate on issues relating to crime victims' rights and criminal justice
reform.
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