I. When the Government has agreed not to use a defendant's statements except to refute a defense at trial, may the Government only use those proffer statements when the defense advances specific factual assertions contradicted by the proffer, as is the case in the Second Circuit, or may the Government use the proffer statements whenever the defense disputes the charges or seeks to minimize or deflect responsibility, as is the case in the Third, Sixth, Seventh and Ninth Circuits.

II. Whether waivers that allow the Government to lighten its burden depending upon defense counsel's litigation tactics – regardless of whether the defendant actually testifies or makes any false statement at trial – unconstitutionally undermine the zealous advocacy of defense counsel and impede counsel's ability to subject the prosecution's evidence to meaningful adversarial testing.

When the Government may use a defendant's statements from plea negotiations to rebut the defense at trial