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EFTA00209657 | EFTA00209705 Case: 13-12923 Date Filed: 08/05/2013 Page: 49 of 75 context of criminal cases. "Ninety-seven percent of federal convictions and ninetyfour percent of state convictions are the result of guilty pleas." Frye, 132 S.Ct. at 1407. Thus, plea/settlement negotiation "is not some adjunct to the criminal justice system, it is the criminal justice system." Id. (emphasis in original). The plea/settlement negotiation communication privilege is essential to the functioning of that system — indeed, to its very ability to function at all — because absent such a privilege, counsel will not feel free to engage in the open and candid discussions, admissions, and concessions which lie at the heart of effective plea/settlement negotiation. B. The Private Interests at Stake Are Profoundly Important. Plea negotiations are "rooted in the imperative need for confidence and trust," Jaffee, 518 U.S. at 10, and maintaining their confidentiality advances significant private as well as public interests. There is an "imperative need" that counsel be able to trust that communications made to prosecutors in the course of the plea/settlement negotiation process will remain confidential and not be subject to later disclosure to third parties seeking to harm their clients. In most criminal cases, it is the negotiations with the prosecution — which commonly include concessions regarding facts or even charges as to which a target or defendant will concede guilt — not a judge or jury, which will determine who goes to jail and for how long. A system in which counsel 35 EFTA00209705
April 24, 2026 at 9:28 AM