Victim Participation in the Plea Negotiation Process in canada
4. Federal Rule 11: A Viable Legal Framework for the Regulation of Plea Bargaining? (cont'd)
4.2 The Implementation of Federal Rule 11
Insofar as the federal courts are concerned, the mechanism that has been established for the formal regulation of plea bargaining is to be found in Rule 11 of the Federal Rules of Criminal Procedure (2000). Rule 11 articulates the various procedures that apply to the entry of a plea by an accused person who appears before a criminal court. Rule 11(c) requires that, before a guilty plea is accepted, the trial judge "must address the defendant personally in open court"
and inform the defendant of the penalties that may be imposed upon conviction and the potential impact of sentencing guidelines on the court's ultimate decision concerning sentence.
Furthermore, the court must be satisfied that the accused understands the information with which he or she is provided. [19] Rule 11(d) places the trial judge under a duty to insure that a guilty plea is voluntary and to "inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or the defendant's attorney."
As the United States Court of Appeals for the Fifth Circuit stated, in U.S. v. Henry (1997), "Rule 11 makes elaborate provision to insure that the plea is made voluntarily and intelligently, i.e., that the defendant understands the nature of the charge, his rights, the consequences of the plea, and that there is a factual basis for the plea."
[20] A dramatic illustration of the effect of this provision is
furnished by U.S. v. Damon (1999), in which the Court of Appeals remanded the case back to the trial court to determine whether the accused's capacity to enter a knowing and voluntary plea had been impaired by an antidepressant drug, that had been administered to Damon following a suicide attempt.
Rule 11(e)(2) clearly states that, if there has been a plea agreement between the parties, then it must be disclosed in open court (or, if good cause is shown, in camera) at the time that the plea of guilty is offered by the accused. Rule 11(e)(3) & (4) provides that the court may either accept or reject the plea agreement: it may not seek to modify it.
Under Rule 11(e)(1), the defendant may agree to plead guilty or nolo contendere in exchange for a promise by the prosecutor to do any of the following:
- move for dismissal of other charges; or
- make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or
- agree that a specific sentence is the appropriate disposition of the case.
It is vital to recognize that the consequences of entering a guilty plea will vary significantly, depending on the specific nature of the plea bargain that has been reached by the parties (Sigman, 1999, p. 1318). Rule 11(e)(2) states that:
If the agreement is of the type specified in subdivision (e)(1)(A) or (C), the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. If the agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw the plea.
If the trial court decides to accept a "Type A" or "Type C" plea bargain, it must "inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement (Rule 11(e)(3)). However, in the case of a "Type B" plea bargain, the court does not really have anything to "accept" or "reject" since the prosecutor merely promises to make a particular sentence recommendation or to refrain from opposing the accused's sentencing request (Herman, 1997, p. 138). It is for this reason that the court must inform the accused that, if it does not accept the prosecutor's recommendation or the accused's request, the accused has no absolute right to withdraw the guilty plea. If the trial judge fails to issue the appropriate warning to the accused and the latter can demonstrate that he or she was ignorant of the nature of a "Type B" plea bargain, then an appellate court will permit the accused to withdraw the guilty plea (U.S. v. Kennell, 1994).
Where the trial court decides to reject a "Type A" or "Type C" plea bargain, it is required to advise the accused – usually in open court – "that the court is not bound by the plea agreement"
and it must "afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if the defendant persists in a guilty plea or plea of nolo contendere the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement"
(Rule 11(e)(4)). The operation of this rule is exemplified in the case of United States v. Fernandez (1991), in which the accused defendant agreed to plea guilty to a drugs charge in exchange for a promise that the sentence would not exceed six years of imprisonment (Sigman, 1999, p. 1318). However, the defendant failed to fulfill his promise to fully cooperate with the government. As a result, the court sentenced him to six–and–a–half years in
prison. The Court of Appeals found that, since the agreement with the government constituted a "Type C" plea bargain, the defendant should have been given an opportunity to withdraw his plea (Herman, 1997, p. 195; Sigman, 1999, p. 1318).
The situation is dramatically different for the defendant who has entered into a "Type B" plea bargain, which consists essentially of a non–binding sentencing recommendation (Herman, 1997, p. 199). Where the court rejects such a plea bargain, the accused has no absolute right to withdraw the guilty plea. For example, in United States v. Thibodeaux (1987), the defendant agreed to plea guilty and to cooperate as a witness in exchange for the prosecutor's sentence recommendation of five years of imprisonment. The trial court subsequently refused to implement the government's recommendation and imposed a ten–year sentence: the defendant was not permitted to withdraw his plea (Sigman, 1999, p. 1318). However, it is important to note that there may be special circumstances in which the court may permit the accused to withdraw the guilty plea that follows a "Type B" plea bargain: indeed, Federal Rule 32(e) explicitly grants the court a discretionary power to permit the accused to withdraw the plea:
If a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.
The onus is on the accused to show "fair and just reason": hence, the court does not readily exercise its discretionary power to permit withdrawal of the guilty plea (U.S. v. Badger (1991)).
Although most defendants would prefer to enter into "Type C" plea bargains because they provide certainty in relation to sentencing outcome, many federal courts reportedly discourage their use because they are perceived as restricting the legitimate scope of judicial sentencing discretion (Sigman, 1999, p. 1319). Furthermore, such plea bargains may be unattractive to the federal trial courts for the reason that, "when judges reject type (C) agreements the case goes back to the trial calendar, which disrupts the docket"
(Sigman, 1999, p. 1319). On the face of it, one would expect that few defendants would wish to subject themselves to the level of uncertainty and risk that is engendered by the "Type B" plea bargain. However, it has been suggested (Sigman, 1999, p. 1324) that, in practice, trial judges usually implement the non–binding sentence recommendations contained in "Type B" plea agreements. Furthermore, as Sigman (1999, p. 1324) suggests, the courts are well aware
of the fact that the participants in the plea bargaining process – prosecutors and defence lawyers – are "repeat players" and that, if the courts were to routinely refuse to accept the prosecutors' sentence recommendations, it would seriously impede the ability of prosecuting and defence attorneys to reach plea agreements in the future. Similarly, McDonald (1987, p. 215) points to other practical reasons, that may underlie a general willingness on the part of the trial courts to accept a prosecutor's sentence recommendation that has induced the accused to plead guilty:
- Judges are just as anxious as prosecutors and defense counsel to dispose of cases as quickly as possible. Hence they are subject to strong pressures to find pleas acceptable, which they almost always do.
- Except in the occasional case of extraordinarily unusual plea agreements, judges are not prone to second guess the agreements worked out by prosecutors. To do so on a regular basis would require the judge to assess the evidentiary strength of the case as well as other tactical matters (such as using the defendant as an informer or for state's evidence) that fall within the province of the prosecutor.
Federal Rule 11(e)(1) makes provision solely for the "attorney for the government and the attorney for the defendant"
to engage in plea negotiations: it does not permit the involvement of judges in such negotiations (Herman, 1997, p. 74). Indeed, Rule 11(e)(1)(C) explicitly states that "the court shall not participate in any such discussions."
Undoubtedly, the task of the trial judge under Rule 11 is to serve as an independent arbiter of the plea bargaining process. The trial court is required to ensure that a guilty plea is being made voluntarily and not as a result "of force, threats or promises apart from the agreement"
(Pan & Kaiser, 2001, p. 1419). Moreover, trial judges are placed under a duty to satisfy themselves that there is a factual basis for the guilty plea – namely, "that the conduct which the defendant admits constitutes the offense charged, that all elements of the offense are met, and that any requirements of criminal intent are shown by the proffered evidence"
(Herman, 1997, p. 12; Pan & Kaiser, 2001, p. 1422). Finally, the trial courts must ensure that any defendant, who indicates an intention to plead guilty, understands the following, critical issues (Pan & Kaiser, 2001, p. 1418):
- the nature of the charge;
- the mandatory minimum and maximum sentences for the charge, including any special parole, supervised release, and restitution terms;
- the constitutional rights waived [21] by a guilty plea; and
- that answers to the court's questions, if under oath, on the record, in the presence of the defendant's counsel, may be used against him or her in a subsequent proceeding.
Where trial judges have stepped beyond the boundaries of supervision and have involved themselves in the actual plea negotiations, the accused will have a strong case for appellate relief (Pan & Kaiser, 2001, pp. 1398–1399). Clearly, intrusion of the trial judge into the negotiations for a plea bargain may well open the door to inappropriate coercion of the defendant into pleading guilty (McDonald, 1987, p. 215). For example, in U.S. v. Casallas (1995), it was held that the trial court had "impermissibly intervened in plea negotiations"
because the judge had informed the defendant of the difference between the potential sentence the could be expected after a trial – as compared with the sentence that would follow a plea bargain – and had subsequently advised the defendant to confer with his attorney (Pan & Kaiser, 2001, p. 1399). A more obvious example of potentially coercive judicial involvement in plea negotiations is to be found in the
case of U.S. vs. Rodriguez (1999), where the judge told the defendant that, if he proceeded with a trial, then he would likely be found guilty (Pan & Kaiser, 2001, p. 1399).
- [19] However, it appears that it is difficult for a defendant to withdraw a guilty plea on the basis of an allegation of a lack of understanding of the charges against him or her. In United States v. Hiltz (2001), the U.S. Court of Appeal for the First Circuit approved the following statement of the applicable principles:
"Where the prosecutor's statement or the defendant's description of the facts set forth all the elements of the offense and the conduct of the defendant constitutes that offense, the defendant's admission that the allegations are true is sufficient evidence that he understands the charge"
(para. 10). - [20] However, it is not clear that this process is necessarily as thorough as the appellate court suggested in the Henry case. For example, a study of six state jurisdictions in 1977, found that the average time for accepting felony pleas was just under 10 minutes (McDonald, 1987: 211).
- [21] While the defendant may receive some benefits for pleading guilty, it is imperative to acknowledge that the defendant also waives a number of significant constitutional rights, such as:
"raising objections to facts alleged in indictment"
(see U.S .v. Walton, 1994);"challenges of illegal search and seizure"
(See Gioiosa v. U.S., 1982);"challenges to a coerced confession"
(see McMann v. Richardson, 1970}; and"challenges based on denial of due process rights to a speedy trial"
(see Tiemens v. U.S.) (Pan & Kaiser, 2001:1406–1408).
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