Guilty Pleas

reprinted from: Guilty Pleas, 40 Georgetown Law Journal Annual Review of Criminal Procedure 424 (2011) (92 Footnotes Omitted)

Plea Bargaining System. Under Rule 11(a)(1) of the Federal Rules of Criminal Procedure, a defendant may plead not guilty, guilty, or, with the court's consent, nolo contendere. The court must enter a plea of not guilty if a defendant refuses to enter a plea. Alternatively, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to appeal specified pretrial motions. Conditional pleas require the consent of the court and the A defendant prevailing on appeal may later withdraw the conditional plea.

The Constitution requires that a defendant's plea be made voluntarily, knowingly,and intelligently. A defendant must be competent in order to enter a guilty plea. A guilty plea may be set aside as involuntary if the defendant can establish prejudice resulting from prosecutorial misconduct. Ineffective assistance of counsel may also prevent a defendant from entering a knowing and voluntary plea. To demonstrate ineffective assistance of counsel, a defendant must show that: (1) counsel's assistance was not “within the range of competence demanded of attorneys in criminal cases”; and (2) a reasonable probability exists that he or she would not have pleaded guilty had counsel been competent.

If a defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the prosecutor has the discretion to agree that the government will: (1) “not bring, or will move to dismiss, other charges”; (2) “agree that a specific sentence or sentencing range is the appropriate disposition of the case”; or (3) “recommend, or agree not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate.” The terms of a plea agreement must be disclosed to the judge in open court when the plea is offered unless the court-upon a showing of good cause--“allows the parties to disclose the plea agreement in camera.” The court is prohibited from participating in plea agreement discussions. If under the agreement the prosecutor promises to not bring or to dismiss certain charges, or agrees that a specific sentence is the appropriate disposition of the case, the court has discretion to accept or reject the agreement or to defer its decision until it has reviewed the presentence report. If the government promises to recommend that a particular sentence or sentencing range is appropriate, “the court must advise the defendant that [he or she] has no right to withdraw the plea if the court does not follow the recommendation.”

If the court rejects a plea agreement containing provisions of the type specified in Rule 11(c)(1)(A) or (C), it must: (1) “inform the parties that the court rejects the plea agreement”; (2) “advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea”; and (3) “advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.”

Under Rule 11(b)(1), before accepting a plea of guilty or nolo contendere, a judge must address the defendant personally in open court to inform the defendant of, and determine that the defendant understands: (1) “the right to plead not guilty”; (2) “the right to a jury trial”; (3) “the right to be represented by counsel”; (4) “the nature of the charge to which the defendant is pleading”; (5) “any mandatory minimum penalty”; (6) “any maximum possible penalty”; (7) “the defendant's waiver of [certain trial or appeal] rights if the court accepts [the defendant's plea] ”; and (8) “the government's right, in a prosecution for perjury or false statement, to use against the defendant any statement that [he or she] gives under oath;” among other factors. However, the court is not required to inform the defendant of all possible collateral consequences of pleading guilty. Additionally, the court must ensure that the plea is “voluntary and did not result from force, threats, or promises (other than [those included in the] plea agreement).” Finally, before entering judgment, “the court must determine that there is a factual basis for the plea.” For the plea to be valid, an adequate factual basis needs to be established only for the elements of the substantive criminal offense.

If the defendant enters a guilty plea while continuing to assert his or her innocence, then the plea is only constitutionally acceptable if there is strong evidence of guilt. The court reporter must keep a verbatim record of the plea proceedings, and if there is a plea of guilty or nolo contendere, the record must include all inquiries and advice that the court made to the defendant. Technical violations of Rule 11 that do not affect substantial rights constitute harmless error and will not provide a basis for relief.

Withdrawal of Pleas. A defendant may withdraw a plea of guilty or nolo contendere “for any reason or no reason” before the court accepts the plea. A defendant may withdraw a plea of guilty or nolo contendere after the court accepts the plea but before the court imposes a sentence only if: (1) the court rejects a plea agreement under Rule 11(c)(5), or (2) the defendant provides “a fair and just reason for requesting the withdrawal.” In determining whether “a fair and just reason” exists, courts consider several factors, including: (1) whether there has been an assertion of legal innocence; (2) the amount of time between the plea and the motion to withdraw; and (3) whether the government would be prejudiced by withdrawal of the plea. If the motion to withdraw is granted, the defendant must live with the consequences of the request. The denial of a motion to withdraw a plea, whether presentence or post-sentence, is reviewed under an abuse of discretion standard. Rule 11 states that “[a] fter the court imposes a sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack.” Courts will set aside a plea of guilty on collateral attack only if doing so is necessary to correct a miscarriage of justice.

Breach of the Agreement. The determination of whether a party has breached a plea agreement is governed by the law of contracts. However, concerns unique to the criminal justice system lead to greater scrutiny by courts than would be afforded to general questions of contract law. The party claiming a breach of a plea agreement must prove the breach by a preponderance of the evidence. Due process requires that the agreement be interpreted in keeping with a defendant's reasonable understanding and that any ambiguity be construed against the government.

The government may not unilaterally declare that the defendant breached the plea agreement; a court must confirm the breach. If the defendant breaches or rescinds a plea agreement, the government may reinstate the original charges or seek specific performance. The government is generally barred from reinstating the original charges if the statute of limitations has run.

A defendant who alleges that the government breached a plea agreement is entitled to an evidentiary hearing unless the allegations are incredible, frivolous, or false. Appeals courts apply plain error review when a defendant alleges on appeal that the government breached a plea agreement but fails to raise the challenge in the district court. If the government breaches a plea agreement, the court will generally remand for a determination of the appropriate remedy. However, if the government's breach is insignificant, the defendant may not be entitled to a remedy. A federal court may enforce constitutional guarantees when a state government breaches a plea agreement but should remand the case to the state court for the determination of remedy.

Circuit courts are split on whether plea agreements in federal prosecutions are binding on federal districts other than the one in which the plea agreement is entered and on whether plea agreements bind other federal governmental bodies who were not parties to the agreement. Plea agreements in state prosecutions are generally not binding on federal jurisdictions without the federal prosecutor's consent.

Admissibility of Evidence Related to Plea Bargaining. Under Rule 11(f) of the Federal Rules of Criminal Procedure and Rule 410 of the Federal Rules of Evidence, evidence of withdrawn guilty pleas, pleas of nolo contendere, and statements made in the course of plea discussions --even if those discussions do not result in a guilty plea or the guilty plea is later withdrawn --are inadmissible at trial. Statements made during plea negotiations are also inadmissible for impeachment purposes. However, this evidentiary bar does not apply to statements made in plea discussions to government agents who are not prosecuting attorneys, unless they are acting with authority delegated by federal prosecutors, and evidence of a prior plea agreement is admissible if introduced to bolster or attack a witness's credibility. In addition, a statement covered by 11(f) of the Federal Rules of Criminal Procedure may be admissible if another statement made in the course of the same plea or plea discussions is introduced into evidence and fairness requires consideration of contemporaneous statements. The defendant may waive the protection of Rule 11(f), as long as the waiver is knowing and voluntary.

Effect of a Guilty Plea. A guilty plea waives most nonjurisdictional constitutional rights, such as the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination. Courts have generally held that a guilty plea also waives the right to challenge nonjurisdictional defects brought about by government conduct prior to entry of the plea, including challenges based on: (1) illegal search and seizure; (2) coerced confession; (3) improper grand jury selection; (4) denial of the due process right to a speedy trial; (5) entrapment; (6) sufficiency of arrest; (7) various prosecutorial defects; and (8) certain statutory claims. Additionally, in some circumstances, the defendant may affirmatively waive the right to appeal his or her sentence as part of a guilty plea. An affirmative waiver of the right to appeal a conviction or sentence usually cannot be invalidated by a court's words or actions.

A guilty plea does not foreclose a subsequent claim by the defendant under 42 U.S.C. § 1983, nor does it waive jurisdictional challenges to conviction, such as lack of subject matter or territorial jurisdiction. In some circumstances, a guilty plea does not waive the right to challenge the constitutionality of the statute under which the defendant was charged. Entry of a guilty plea does not normally foreclose a double jeopardy challenge against an indictment that, on its face, violates the Double Jeopardy Clause. However, a guilty plea does waive a double jeopardy challenge if a defendant pleads guilty to separate offenses. Circuit courts are split on whether a guilty plea waives the right to appeal based on alleged partiality by the sentencing judge.