Criminal Justice Section  

   Standards
 

PLEAS OF GUILTY

PART I.

RECEIVING AND ACTING UPON THE PLEA

Standard 14- 1.1

   Pleading by defendant; alternatives

   (a) A defendant may plead not guilty, guilty, or (when allowed under the law of the jurisdiction) nolo contendere. A plea of guilty or nolo contendere should be received only from the defendant personally in open court, except when the defendant is a corporation, in which case the plea may be entered, with due corporate authorization, by counsel or a corporate officer. A defendant may plead nolo contendere only with the consent of the court.

   (b) As part of the plea process, appropriate consideration should be given to the views of the parties, the interests of the victims and the interest of the public in the effective administration of justice.

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Standard 14- 1.2. Pleading to other offenses

   Upon entry of a plea of guilty or nolo contendere or after conviction on a plea of not guilty, the defendant's counsel may request permission for the defendant to enter a plea of guilty or nolo contendere as to other crimes committed within the jurisdiction of coordinate courts of that government. Upon written approval of the prosecuting attorney of the governmental unit in which these crimes are charged or could be charged, the defendant should be allowed to enter the plea (subject to the court's discretion to refuse a nolo contendere plea). Entry of such a plea constitutes a waiver of the following: venue, as to crimes committed in other governmental units of the government; and formal charge, as to offenses not yet charged.

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Standard 14- 1.3. Aid of counsel; time for deliberation

   (a) A defendant should not be called upon to plead until an opportunity to retain counsel has been afforded or, if eligible for appointment of counsel, until counsel has been appointed or waived. A defendant with counsel should not be required to enter a plea if counsel makes a reasonable request for additional time to represent the defendant's interests.

   (b) When a defendant has properly waived counsel and tenders a plea of guilty or nolo contendere, the court should not accept the plea unless it is reaffirmed by the defendant after a reasonable time for deliberation, set by rule or statute, after the defendant received the advice from the court required in Standard14-1 .4.

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Standard 14- 1.4. Defendant to be advised

   (a) The court should not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally in open court and determining that the defendant understands:

   (i) the nature and elements of the offense to which the plea is offered, and the terms and conditions of any plea agreement;

   (ii) the maximum possible sentence on the charge, including that possible from consecutive sentences, and the mandatory minimum sentence, if any, on the charge, or any special circumstances affecting probation or release from incarceration;

   (iii) that, if the defendant has been previously convicted of an offense and the offense to which the defendant has offered to plead is one for which a different or additional punishment is authorized by reason of the previous conviction or other factors, the fact of the previous conviction or other factors may be established after the plea, thereby subjecting the defendant to such different or additional punishment;

   (iv) that by pleading guilty the defendant waives the right to a speedy and public trial, including the right to trial by jury; the right to insist at a trial that the prosecution establish guilt beyond a reasonable doubt; the right to testify at a trial and the right not to testify at a trial; the right at a trial to be confronted by the witnesses against the defendant, to present witnesses in the defendant's behalf, and to have compulsory process in securing their attendance;

   (v) that by pleading guilty the defendant generally waives the right to file further motions in the trial court, such as motions to object to the sufficiency of the charging papers to state an offense or to evidence allegedly obtained in violation of constitutional rights; and

   (vi) that by pleading guilty the defendant generally waives the right to appeal, except the right to appeal a motion that has been made, ruled upon and expressly reserved for appeal and the right to appeal an illegal or unauthorized sentence.

   (b) If the court is in doubt about whether the defendant comprehends his or her rights and the other matters of which notice is required to be supplied in accordance with this standard, the defendant should be asked to repeat to the court in his or her own words the information about such rights and the other matters, or the court should take such other steps as may be necessary to assure itself that the guilty plea is entered with complete understanding of the consequences.

   (c) Before accepting a plea of guilty or nolo contendere, the court should also advise the defendant that by entering the plea, the defendant may face additional consequences including but not limited to the forfeiture of property, the loss of certain civil rights, disqualification from certain governmental benefits, enhanced punishment if the defendant is convicted of another crime in the future, and, if the defendant is not a United States citizen, a change in the defendant's immigration status. The court should advise the defendant to consult with defense counsel if the defendant needs additional information concerning the potential consequences of the plea.

   (d) If the defendant is represented by a lawyer, the court should not accept the plea where it appears the defendant has not had the effective assistance of counsel.

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Standard 14- 1.5. Determining voluntariness of plea

   The court should not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. By inquiry of the prosecuting attorney, the defendant, and defense counsel, if any, the court should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what discussions were had and what agreement has been reached. If the plea agreement contemplates the granting of charge or sentence concessions which are subject to judicial approval, the court should advise the defendant, consistent with standard 14-3.3(e), whether withdrawal of the plea will be allowed if the charge or sentence concessions are rejected. The court should address the defendant personally to determine whether any other promises or any force or threats were used to obtain the plea.

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Standard 14- 1.6. Determining factual basis of plea

   (a) In accepting a plea of guilty or nolo contendere, the court should make such inquiry as may be necessary to satisfy itself that there is a factual basis for the plea. As part of its inquiry, the defendant may be asked to state on the record whether he or she agrees with, or in the case of a nolo contendere plea, does not contest, the factual basis as proffered.

   (b) Whenever a defendant pleads nolo contendere or pleads guilty and simultaneously denies culpability, the court should take special care to make certain that there is a factual basis for the plea. The offer of a defendant to plead guilty should not be refused solely because the defendant refuses to admit culpability. Such a plea may be refused where the court has specific reasons for doing so which are made a matter of record.

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Standard 14- 1.7. Record of proceedings

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Standard 14- 1.8. Consideration of plea in final disposition

   (a) The fact that a defendant has entered a plea of guilty or nolo contendere should not, by itself alone, be considered by the court as a mitigating factor in imposing sentence. It is proper for the court to approve or grant charge and sentence concessions to a defendant who enters a plea of guilty or nolo contendere when consistent with governing law and when there is substantial evidence to establish, for example, that:

   (i) the defendant is genuinely contrite and has shown a willingness to assume responsibility for his or her conduct;

   (ii) the concessions will make possible alternative correctional measures which are better adapted to achieving protective, deterrent, or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction;

   (iii) the defendant, by making public trial unnecessary, has demonstrated genuine remorse or consideration for the victims of his or her criminal activity; or

   (iv) the defendant has given or agreed to give cooperation.

   (b) The court should not impose upon a defendant any sentence in excess of that which would be justified by any of the protective, deterrent, or other purposes of the criminal law because the defendant has chosen to require the prosecution to prove guilt at trial rather than to enter a plea of guilty or nolo contendere.

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PART II.

WITHDRAWAL OF THE PLEA

Standard 14- 2.1. Plea withdrawal and specific performance

   (a) After entry of a plea of guilty or nolo contendere and before sentence, the court should allow the defendant to withdraw the plea for any fair and just reason. In determining whether a fair and just reason exists, the court should also weigh any prejudice to the prosecution caused by reliance on the defendant's plea.

   (b) After a defendant has been sentenced pursuant to a plea of guilty or nolo contendere, the court should allow the defendant to withdraw the plea whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice. A timely motion for withdrawal is one made with due diligence, considering the nature of the allegations therein.

   (i) Withdrawal may be necessary to correct a manifest injustice when the defendant proves, for example, that:

   (A) the defendant was denied the effective assistance of counsel guaranteed by constitution, statute, or rule;

   (B) the plea was not entered or ratified by the defendant or a person authorized to so act in the defendant's behalf;

   (C) the plea was involuntary, or was entered without knowledge of the charge or knowledge that the sentence actually imposed could be imposed;

   (D) the defendant did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement; or

   (E) the defendant did not receive the charge or sentence concessions contemplated by the plea agreement, which was either tentatively or fully concurred in by the court, and the defendant did not affirm the plea after being advised that the court no longer concurred and after being called upon to either affirm or withdraw the plea; or

   (F) the guilty plea was entered upon the express condition, approved by the judge, that the plea could be withdrawn if the charge or sentence concessions were subsequently rejected by the court.

   (ii) The defendant may move for withdrawal of the plea without alleging that he or she is innocent of the charge to which the plea has been entered.

   (c) As an alternative to allowing the withdrawal of a plea of guilty or nolo contendere, the court may order the specific performance by the government of promises or conditions of a plea agreement where it is within the power of the court and the court finds, in its discretion, that specific performance is the appropriate remedy for a breach of the agreement.

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Standard 14- 2.2. Withdrawn plea and discussions not admissible

   (a) A plea of guilty or nolo contendere that has been withdrawn should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings.

   (b) Any statement made in the course of any proceedings concerning a plea of guilty or nolo contendere that has been withdrawn, or in plea discussions with the prosecuting attorney that result in a plea of guilty or nolo contendere that is later withdrawn, should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings, except that such a statement may be admitted:

   (i) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel; or

   (ii) in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.

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PART III.

PLEA DISCUSSIONS AND PLEA AGREEMENTS

Standard 14- 3.1. Responsibilities of the prosecuting attorney

   (a) The prosecuting attorney may engage in plea discussions with counsel for the defendant for the purpose of reaching a plea agreement. Where the defendant has properly waived counsel, the prosecuting attorney may engage in plea discussions with the defendant. Where feasible, a record should be made and preserved for all such discussions with the defendant.

   (b) The prosecuting attorney should make known any policies he or she may have concerning disposition of charges by plea or diversion.

   (c) The prosecuting attorney, in considering a plea agreement, may agree to one or more of the following, as dictated by the circumstances of the individual case:

   (i) to make or not to oppose favorable recommendations or to remain silent as to the sentence which should be imposed if the defendant enters a plea of guilty or nolo contendere, including such terms of the sentence as criminal forfeiture, restitution, fines and alternative sanctions;

   (ii) to dismiss, to seek to dismiss, or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or nolo contendere to another offense reasonably related to defendant's conduct;

   (iii) to dismiss, to seek to dismiss, or not to oppose dismissal of other charges or potential charges if the defendant enters a plea of guilty or nolo contendere;

   (iv) where appropriate, to enter an agreement with the defendant regarding the disposition of related civil matters to which the government is or would be a party, including civil penalties and/or civil forfeiture; or

   (v) in lieu of a plea agreement, to enter an agreement permitting the diversion of the case from the criminal process where appropriate and permissible to do so.

   (d) Similarly situated defendants should be afforded equal plea agreement opportunities.

   (e) The prosecuting attorney should make every effort to remain advised of the attitudes and sentiments of victims and law enforcement officials before reaching a plea agreement.

   (f) The prosecuting attorney should not knowingly make false statements or representations as to law or fact in the course of plea discussions with defense counsel or the defendant.

   (g) The prosecuting attorney should not, because of the pendency of plea negotiations, delay any discovery disclosures required to be made to the defense under applicable law or rules.

   (h) In connection with plea negotiations, the prosecuting attorney should not bring or threaten to bring charges against the defendant or another person, or refuse to dismiss such charges, where admissible evidence does not exist to support the charges or the prosecuting attorney has no good faith intention of pursuing those charges.

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Standard 14- 3.2. Responsibilities of defense counsel

   (a) Defense counsel should keep the defendant advised of developments arising out of plea discussions conducted with the prosecuting attorney, and should promptly communicate and explain to the defendant all plea offers made by the prosecuting attorney.

   (b) To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, should advise the defendant of the alternatives available and address considerations deemed important by defense counsel or the defendant in reaching a decision. Defense counsel should not recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed.

   (c) Defense counsel should conclude a plea agreement only with the consent of the defendant, and should ensure that the decision whether to enter a plea of guilty or nolo contendere is ultimately made by the defendant.

   (d) Defense counsel should not knowingly make false statements or representations as to law or fact in the course of plea discussions with the prosecuting attorney.

   (e) At the outset of a case, and whenever the law, nature and circumstances of the case permit, defense counsel should explore the possibility of a diversion of the case from the criminal process.

   (f) To the extent possible, defense counsel should determine and advise the defendant, sufficiently in advance of the entry of any plea, as to the possible collateral consequences that might ensue from entry of the contemplated plea.

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Standard 14- -3.3. Responsibilities of the judge

   (a) The judge should not accept a plea of guilty or nolo contendere without first inquiring whether the parties have arrived at a plea agreement and, if there is one, requiring that its terms and conditions be disclosed.

   (b) If a plea agreement has been reached by the parties which contemplates the granting of charge or sentence concessions by the judge, the judge should:

   (i) order the preparation of a preplea or presentence report, when needed for determining the appropriate disposition;

   (ii) give the agreement due consideration, but notwithstanding its existence reach an independent decision on whether to grant charge or sentence concessions; and

   (iii) in every case advise the defendant whether the judge accepts or rejects the contemplated charge or sentence concessions or whether a decision on acceptance will be deferred until after the plea is entered and/or a preplea or presentence report is received.

   (c) The judge should not through word or demeanor, either directly or indirectly, communicate to the defendant or defense counsel that a plea agreement should be accepted or that a guilty plea should be entered.

   (d) A judge should not ordinarily participate in plea negotiation discussions among the parties. Upon the request of the parties, a judge may be presented with a proposed plea agreement negotiated by the parties and may indicate whether the court would accept the terms as proposed and if relevant, indicate what sentence would be imposed. Discussions relating to plea negotiations at which the judge is present need not be recorded verbatim, so long as an appropriate record is made at the earliest opportunity. For good cause, the judge may order the record or transcript of any such discussions to be sealed.

   (e) In cases where a defendant offers to plead guilty and the judge decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, the judge shall so advise the defendant and permit withdrawal of the tender of the plea. In cases where a defendant pleads guilty pursuant to a plea agreement and the court, following entry of the plea, decides that the final disposition should not include the contemplated charge or sentence concessions, withdrawal of the plea shall be allowed if:

   (i) the judge had previously concurred, whether tentatively or fully, in the proposed charge or sentence concessions; or

   (ii) the guilty plea is entered upon the express condition, approved by the judge, that the plea can be withdrawn if the charge or sentence concessions are subsequently rejected by the court.

   In all other cases where a defendant pleads guilty pursuant to a plea agreement and the judge decides that the final disposition should not include the contemplated charge or sentence concessions, withdrawal of the plea may be permitted as set forth in standard 14-2.1.

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Standard 14- 3.4. Inadmissibility of nolo contendere pleas, pleas not accepted, and plea discussions

   (a) A plea of nolo contendere should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings.

   (b) A plea of guilty or nolo contendere that is not accepted by the court should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings.

   (c) Any statement made in the course of any proceedings concerning a plea of nolo contendere or a plea of guilty or nolo contendere that is not accepted by the court, or in the course of plea discussions with the prosecuting attorney that do not result in a plea of guilty or that result in a plea of nolo contendere or a plea of guilty or nolo contendere that is not accepted by the court, should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings, except that such a statement may be admitted:

   (i) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel; or

   (ii) in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.

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PART IV.

DIVERSION AND OTHER ALTERNATIVE RESOLUTIONS

Standard 14-4.1. Diversion and other alternative resolutions

   (a) Where the interests of justice will be served, the prosecuting attorney and the defense may agree that a prosecution be suspended for a specified period of time, after which time it will be dismissed if the offender has met specified conditions during the suspension period. Such a diversion may be appropriate, for example, where:

   (i) the offender is charged with an offense designated as appropriate for diversion;

   (ii) the offender does not have a prior criminal record that would make diversion inappropriate;

   (iii) the offender poses no threat to the community under the conditions specified in the diversion program; and

   (iv) the needs of the offender and the government can be better met outside the traditional criminal justice process.

   (b) An agreement to diversion should be contained in a writing reflecting all of the conditions agreed upon. As a condition of diversion, an offender may be required, where permissible under law, to waive speedy trial rights and to toll a statute of limitations, and may also be required to fulfill other appropriate conditions, for example, to enter a treatment program, to provide community service, to make restitution, and/or to refrain from drug use and criminal activity.

   (c) Diversion programs should be governed by written policies setting forth the Standards for eligibility and the procedures for participation, so that all eligible offenders have an equal opportunity to participate. An offender's eligibility to participate in diversion should not depend on his or her ability to pay restitution or other costs.

   (d) The development of other, alternative forms of noncriminal resolution for appropriate cases should also be encouraged.

 

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