Module 6
Evidence and Justice
A. Discovery
The informal and formal exchange of information between prosecution and
defense is referred to as discovery. Laboratory reports, statements of witnesses,
defendants’ confessions, and police reports are examples of information that prosecutors
often gather and defense attorneys want to know about before trial. Discovery seeks to
ensure that the adversary system does not give one side an unfair advantage over the
other. The guiding assumption of the adversary system is that truth will emerge after a
struggle at trial. But as Justice William Brennan (1963) asked, should this struggle at trial
be a sporting event or a quest for the truth? Historically, civil trials were largely sporting
events, in which the outcome depended heavily on the technical skills of the lawyers. In
an effort to eliminate the worst aspects of such contests, the Federal Rules of Civil
Procedure were adopted in 1938, and most states have since followed the federal
example. By these rules, prior to trial, every party in a civil action is entitled to the
disclosure of all relevant information in the possession of any person, unless that
information is privileged (Friedenthal, Kane, & Miller, 2015). These discovery rules are
intended to make a trial “less a game of blind man’s bluff and more a fair contest with the
basic issues and facts disclosed to the fullest practicable extent”.
Discovery in federal cases is governed primarily by sections of Rules 12, 16, and
26 of the Federal Rules of Criminal Procedure. Collectively, these rules provide a
defendant, upon motion, rights to discovery concerning tangible objects; tape recordings;
books, papers, and documents (including written or recorded statements made by the
defendants or witnesses) that are relevant to the case; the defendant’s prior criminal
record, if any; the results or reports of physical examinations, scientific tests,
experiments, and forensic comparisons; and summaries of any expert testimony that the
government intends to offer in its case-in-chief. These materials may total only a few
items and pages, or they may fill many boxes. The rules often afford the government
similar reciprocal discovery upon its compliance with the request of the defendant.
In Brady v. Maryland (1963, p. 87), the U.S. Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or punishment, irrespective of
the good faith or bad faith of the prosecution” (italics added). This is commonly referred
to as the Brady rule. The Brady rule is limited to admissible evidence. Thus, the
prosecution has no obligation to provide the defense potentially exculpatory information
that would not be admissible in court. For example, in Wood v. Bartholomew (1995), the
U.S. Supreme Court held that there is no requirement to turn over the results of a
polygraph examination of a witness because polygraph results are inadmissible.
In Jencks v. United States (1957), the Supreme Court ruled that the government
must disclose any prior inconsistent statements of prosecutorial witnesses so that the
defense can conduct a meaningful cross-examination of such witnesses. Congress both
expanded and limited the holding in Jencks when it enacted the Jencks Act. That law
requires the prosecutor to disclose, after direct examination of a government witness and
on the defendant’s motion, any statement of a witness in the government’s possession
that relates to the subject matter of the witness’s testimony. Thus, the Jencks Act requires
disclosure of all prior statements of witnesses, even if the prior statements are not
inconsistent with any subsequent statement by the witnesses, expanding the holding of
Jencks. Yet, Congress placed the burden on the defense counsel to ask for the information
(unlike Brady material, which the prosecutor has an ethical obligation to disclose even if
not asked). Congress also limited the time frame for such disclosures such that it need not
take place until after the direct examination of a government witness by the prosecution.
Discovery rules are vitally important to defense attorneys. In states that grant
defense considerable discovery rights, the lawyer can go straight to the prosecutor’s files
and obtain the essentials of the state’s case against the defendant. By learning the facts of
the prosecutor’s case, the defense attorney need not face the difficult task of trying to
force his client to voluntarily disclose this information. Across the nation, “nearly all
lawyers interviewed felt that clients’ veracity is questionable and in need of thorough
verification. This forces the attorney to devote extra hours, frequently wasted, verifying a
client’s version of the facts, which also puts a strain on their relationship—especially
when the attorney is forced to confront the defendant with his prevarications”.
Ordinarily, to obtain discoverable information, a party must make a timely motion
before the court; show that the specific items sought are material to the preparation of its
case; and demonstrate that its request is reasonable. Some jurisdictions, however, provide
for reciprocal disclosure—automatic discovery for certain types of evidence, without the
necessity for motions and court orders. Who must disclose what to whom, however,
varies significantly, causing controversy in the criminal justice system.
A few states allow the defendant access to discoverable information in the
prosecution’s possession without the defense having a duty to disclose any information to
the prosecution. Even in such jurisdictions, however, the defense would have an
obligation to disclose certain evidence in support of select affirmative defenses. For
example, an alibi defense means that the defendant claims the crime was committed
while the defendant was somewhere else and thus could not have been the perpetrator.
The defense would have to disclose a list of witnesses to be called to support the alibi
(Federal Rule of Criminal Procedure 12.1(a)(2); Williams v. Florida, 1970). Such pretrial
notice enables the prosecutor to investigate the backgrounds of these witnesses and thus
be prepared to undermine the defendant’s contention that he or she was somewhere else
when the crime was committed. Similarly, Federal Rule of Criminal Procedure 12.2 and
the rules in most states mandate that the defense must disclose to the prosecution prior to
trial that an insanity plea will be entered or that expert witnesses will be called.
B. Suppressing Evidence
The most controversial of the U.S. Supreme Court’s criminal justice decisions
have concerned how the police gather evidence. For example, the rape conviction of
Ernesto Miranda in 1966 was overturned because the police had not advised him of his
constitutional right to remain silent before he confessed. In 1961, Dollree Mapp’s
pornography conviction was reversed because the police had illegally searched her house.
In both cases, otherwise valid and trustworthy evidence was excluded from trial. These
cases are applications of the exclusionary rule, a judicial creation that is rooted, in part, in
the writings of several Framers of the U.S. Constitution.
The exclusionary rule prohibits the prosecutor from using illegally obtained
evidence during a trial. Under the common law, the seizure of evidence by illegal means
did not affect its admissibility in court. Any evidence, however obtained, was admitted as
long as it satisfied other evidentiary criteria for admissibility, such as relevance and
trustworthiness. That changed when the exclusionary rule was first developed in Weeks
v. United States (1914). Weeks, however, was limited to a prohibition on the use of
evidence illegally obtained by federal law enforcement officers. Not until Wolf v.
Colorado (1949) did the U.S. Supreme Court take the first step toward applying the
exclusionary rule to the states by ruling that the Fourth Amendment was applicable to the
states through the Due Process Clause of the Fourteenth Amendment. Wolf v. Colorado,
however, left enforcement of Fourth Amendment rights to the discretion of the individual
states; it did not specifically require application of the exclusionary rule. That mandate
did not come until the landmark decision of Mapp v. Ohio (1961). With Mapp, the
exclusionary rule became the principal method to deter Fourth Amendment violations by
law enforcement officials. The rule was also supported by a normative argument: A court
of law should not participate in or condone illegal conduct.
The exclusionary rule is not limited to evidence that is the direct product of illegal
police behavior, such as coerced confessions, unnecessarily suggestive lineups, or seizure
of items during unconstitutional searches. The rule also requires exclusion of evidence
indirectly obtained as a result of a constitutional violation (this type of evidence is
sometimes called derivative evidence). The exclusionary rule operates to exclude
derivative evidence because it is considered to be fruit of the poisonous tree. Under this
doctrine’s metaphors, the poisonous tree is evidence directly obtained as a result of a
constitutional violation; the fruit is the derivative evidence obtained because of
knowledge gained from the first illegal search, arrest, confrontation, or interrogation. For
example, assume that police illegally arrest someone without probable cause and then
interrogate the suspect without first administering Miranda warnings. During the
interrogation, the suspect confesses to a murder and tells the police the location of the
body. The exclusionary rule would prevent the confession from being admitted into
evidence at trial since it was obtained as a result of two constitutional violations: an
illegal arrest and a Fifth Amendment self-incrimination violation. If the police then
discovered the body where the suspect told them to look, the body and any evidence on it
would also be inadmissible at trial since the police found the body as a result of their
illegal interrogation of the suspect. The body itself would be considered fruit of the
poisonous tree.
First, when police act in good faith on warrant or statute reasonably believed to be
valid, but is later determined to be a defective warrant or an unconstitutional statute, their
good faith reliance on the warrant or law usually allows the evidence collected to be
admissible (United States v. Leon, 1984; Arizona v. Evans, 1995). The lack of police
misconduct underlies the logic of this exception to the exclusionary rule. Note, however,
that police cannot be said to have acted in good faith if a warrant is obviously defective,
such as if it lacks a description of the things or persons to be searched (Groh v. Ramirez,
2004), or if police provide deliberately or recklessly false information to obtain the
warrant.
Second, if evidence is obtained through a source that is independent of any
unconstitutional police actions, then the independent source doctrine will allow such
evidence to be admitted at trial. For example, in Segura v. United States (1984), police
obtained a valid search warrant only using information known to officers before they
entered an apartment illegally. Despite an illegal trespass, the evidence collected during
the search was admissible because the warrant was supported by probable cause
established by information independent from the illegal entry.
Third, the inevitable discovery exception holds that a court may admit illegally
obtained evidence if it would have been discovered anyway through independent, lawful
means. For example, in Nix v. Williams (1984), police located a body by illegally
interrogating the defendant in violation of his Sixth Amendment right to counsel. But,
since a comprehensive search for the body was already under way in the area in which
the body was ultimately located, the Court reasoned that the body would have inevitably
been discovered anyway and, therefore, the physical evidence of the homicide was
admissible.
Finally, a court may admit evidence obtained in a manner that is so far removed
from a constitutional violation such that the initial illegality is deemed to be sufficiently
attenuated/weakened (Brown v. Illinois, 1975). For example, in Won Sun v. United
States (1963), federal agents arrested the defendant without probable cause. Several days
after he was released on bail, the defendant returned to the police station and voluntarily
confessed. His actions were deemed that sufficiently removed from the illegal arrest that
the attenuation exception to the exclusionary rule applied, rendering his confession
admissible
C. Interrogations and Confessions
Traditionally, English common law routinely admitted all confessions, even those
produced by torture. That began to change in the mid-1700s when English courts started
to examine the circumstances under which a confession was made. The rule that
eventually emerged was that only confessions that were “free and voluntary” would be
admitted at trial. Confessions obtained by physical coercion, such as beatings or torture,
were no longer allowed into evidence because they were not trustworthy; someone in fear
of a beating is likely to say what his or her antagonists want to hear. Relying on the
Fourteenth Amendment’s Due Process Clause, the U.S. Supreme Court adopted this
approach in Brown v. Mississippi (1936). Since then, confessions based on physical
coercion have been inadmissible in U.S. courts on due process grounds. As a result, such
harsh means of interrogation by police in the United States have largely ceased. (As
explained in Chapter 2, however, interrogations of “enemy combatants” under the
administration of President George W. Bush were a notable departure from the trend
away from physically coercive techniques.)
Given the language of the Fifth Amendment, it should come as no surprise that a
criminal defendant has an “absolute right not to testify” at trial (United States v. Patane,
2004, p. 637). Thus, a prosecutor may not ask a jury to draw an inference of guilt from
the defendant’s failure to testify in his or her own defense (Griffin v. California, 1965).
Prior to trial, however, a suspect usually must assert his or her privilege against self-
incrimination to benefit from it because “the Fifth Amendment guarantees that no one
may be ‘compelled in any criminal case to be a witness against himself’; it does not
establish an unqualified ‘right to remain silent’” (Salinas v. Texas, 2013, p. 2177). In
other words—and perhaps paradoxically, from a logical standpoint—one may not merely
remain mute in order to invoke one’s privilege against self-incrimination because the
privilege “generally is not self-executing” (Minnesota v. Murphy, 1984, p. 425). Rather,
someone who desires the protection of the Fifth Amendment’s Self-Incrimination Clause
must affirmatively claim it by expressly invoking the privilege at the time he or she is
relying on it (Berghuis v. Thompkins, 2010; Salinas v. Texas, 2013). Although a suspect
need not recite any specific phrase to invoke the privilege—like saying “I invoke my
Fifth Amendment rights” or “I assert my privilege against self-incrimination”— it is clear
that the suspect must say something that puts law enforcement officers on notice that he
or she is refusing to answer questions.
Once the Sixth Amendment right to counsel attaches and is invoked or asserted,
authorities may not engage in any conduct that is designed to elicit an incriminating
response from the defendant without the presence or waiver of counsel (Brewer v.
Williams, 1977). This means that a defendant (whether in custody or not) may not be
questioned without the defendant’s lawyer being present unless a valid waiver of the
Sixth Amendment right to counsel is first obtained. Thus, the Sixth Amendment bars the
use of any secret investigatory techniques (such as placing an informant in a jail cell with
a suspect), while the Fifth Amendment does not.
Neither Miranda nor any Sixth Amendment right to counsel cases replaced the
voluntariness test; rather, the Fifth and Sixth Amendments work in conjunction with that
due process requirement. “[T]he failure to provide Miranda warnings in and of itself does
not render a confession involuntary” (New York v. Quarles, 1984, p. 655). However,
while satisfaction of Miranda’s requirements is a relevant consideration in determining
the voluntariness of a confession, it is not conclusive. Statements given after Miranda
warnings may nonetheless be inadmissible if they were not given voluntarily but rather
were coerced (Berkemer v. McCarty, 1984). In Mincey v. Arizona (1978), for example,
the continued interrogation of an injured, depressed, and medicated suspect who was in
extreme pain while being treated in a hospital intensive care unit was held to render his
statements involuntary even though he had been Mirandized.
The feature “Key Developments in Interrogation Law” summarizes some of the
major cases concerning the interrogation of criminal suspects. With a handful of
exceptions, such as Minnick v. Mississippi (1990) and Dickerson v. United States (2000),
the Supreme Court has generally limited Miranda’s application under the leadership of
Chief Justices Warren Burger, William Rehnquist, and John Roberts.
D. Search and Seizure
The first part of the Fourth Amendment is referred to as the reasonableness
clause. A “search” occurs under the Fourth Amendment when police physically intrude
onto an individual’s property to obtain information or discover something (United States
v. Jones, 2012). A “search” also occurs “when an expectation of privacy that society is
prepared to consider ‘reasonable’ is infringed” (United States v. Jacobsen, 1984, 113).
And, “a ‘seizure’ of property occurs when there is some meaningful interference with an
individual’s possessory interest in that property” (United States v. Jacobsen, 1984, p.
113). Thus, for the protections of the Fourth Amendment to apply, there must be either
some governmental trespass to property or some governmental invasion of a person’s
actual, subjective expectation of privacy, and that expectation of privacy must be
objectively reasonable by societal standards.
An unreasonable search and seizure occurs when law enforcement infringes upon
property rights or a reasonable expectation of privacy by conducting a search or seizure
without complying with the second clause of the Fourth Amendment, called the warrants
clause. Under it, searches and seizures unsupported by probable cause are illegal.
Moreover, even if there is probable cause, a warrant that describes with particularity the
items police intend to search or seize is required to conduct a search and seizure unless a
recognized warrant exception applies.
One overarching exception to the Fourth Amendment that should be noted
concerns exigent circumstances. Exigent circumstances are those “that would cause a
reasonable person to believe that entry (or other relevant prompt action) was necessary to
prevent physical harm to the officers or other persons, the destruction of relevant
evidence, the escape of a suspect, or some other consequence improperly frustrating
legitimate law enforcement efforts” (United States v. McConney, 1984, p. 1199). This is
because the touchstone of the Fourth Amendment is reasonableness, and compliance with
the usual requirements of probable cause and a warrant would be unreasonable in such
emergency situations.
A search warrant is a written document, signed by a judge or magistrate,
authorizing a law enforcement officer to conduct a search. The Fourth Amendment
specifies that “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched and the Persons or things
to be seized.” In light of the plain language of the Fourth Amendment, search warrants
issued by a neutral judicial officer (usually a magistrate or judge) are the preferred
mechanism for authorizing and conducting searches and seizures in the United States.
Once a police officer decides that a search warrant is necessary, the officer
usually goes back to the stationhouse to prepare the application, affidavit, and warrant.
Three alternative procedures are used. In a few jurisdictions, search warrant applications
are prepared by a deputy prosecutor on the basis of information provided by the officer.
In other localities and in the federal system, the law enforcement officer prepares all the
documentation and then submits them to a prosecutor, who systematically reviews them
before they are presented to the magistrate. Regardless of who actually prepares the
documentation, the application must provide sufficient information to a neutral judicial
officer to determine that there is “a fair probability that contraband or evidence of a crime
will be found in a particular place” (Illinois v. Gates, 1983, p. 238). This information is
usually provided in an affidavit, a written statement of facts sworn to before the
magistrate.
Only judicial officers who have been specifically authorized to do so may issue
search warrants. Most jurisdictions give this authority to judicial officers, such as
magistrates, complaint justices, justices of the peace, and judges. The vesting of warrant-
issuing power in a neutral and detached judicial officer stems from the Supreme Court’s
mandate that warrants can be issued only by people who are not involved in the
“activities of law enforcement”.
As the text of the Fourth Amendment makes clear, warrants must describe with
particularity “the place to be searched and the persons or things to be seized.” This
requirement means that warrants should be as detailed as possible. Thus, warrants to
search premises should use specific addresses when addresses are known. Warrants to
search motor vehicles should include information such as the make, body style, color,
year, location, license plate number, and owner or operator of the vehicle (to the extent
such information is known). Warrants to search particular people should include the
person’s name or, alternatively, a detailed description of a person whose name is
unknown that includes the person’s weight, height, age, race, clothing, address, aliases,
and so forth. Finally, items to be seized must be described with sufficient particularity so
that the officers executing the warrant (1) can identify the items with reasonable
certainty, and (2) are left with no discretion as to which property is to be taken.
Once the items specified in a warrant have been found during a search and seized,
the legal justification for law enforcement officers’ intrusion onto premises comes to an
end. They must therefore leave the premises in a timely manner. Before departing,
however, Federal Rule of Criminal Procedure 41 and its state-law counterparts say that
proper execution of a search warrant entails several duties after the actual search is
completed. Unless the warrant provides otherwise, searching officers must inventory all
the property seized and leave a copy of the warrant and inventory with the occupants or
on the premises if no occupant is present. After leaving the searched premises, the
warrant itself, together with a copy of the inventory, must be returned to the judicial
officer designated in the warrant. Courts generally hold that these postsearch duties are
ministerial acts. Thus, a failure to perform them will usually not result in suppression of
any evidence.
Finally, evidence seized during the execution of a search warrant must be secured
in a manner that preserves the chain of custody. This process involves carefully collecting
and labeling the evidence seized during the execution of the search warrant and then
storing the evidence in a secure place—usually the evidence repository of a police
department that is accessible only to designated evidence clerks. If evidence needs to be
removed from secure police storage (for example, for use in court or to go to a laboratory
for forensic scientific testing), then law enforcement must carefully document the dates
and times at which the evidence was moved, the identity of all evidence handlers, the
duration of custody and transfer, and the conditions under which evidence was stored
during transfer. All people involved in handling the evidence must sign forms
documenting their participation in the process to avoid subsequent allegations that the
evidence was planted, unaccounted for, mishandled, or tampered with. Thus, a proper
chain of custody allows the prosecution to show that evidence was scrupulously
maintained in such a manner that its whereabouts can be accounted for from the moment
of initial seizure until the time it is introduced into evidence in court.
Searches conducted using wiretaps, bugs, or other devices to overhear
conversations or obtain other kinds of information pose unique challenges for balancing
privacy interests against the need for effective law enforcement in the area of electronic
surveillance. On the one hand, electronic listening, tracking, and recording devices
provide a very powerful tool for law enforcement officials in investigating and
prosecuting crime. On the other hand, the potential for the abuse of individual rights can
be far greater with electronic surveillance than with any ordinary search or seizure. The
task of resolving these competing interests has fallen on state legislatures, the U.S.
Congress, and ultimately, the courts.
If a conversation takes place in public where other parties can overhear the
conversation, there is no reasonable expectation of privacy, because the participants
exposed their conversation to the ears of others. Thus, any recording of such a
conversation would not violate either the Fourth Amendment or Title III. Moreover, what
an employer overhears while monitoring phone conversations over extensions for
legitimate business reasons and what family members overhear while eavesdropping on
the conversations of other family members using an extension telephone do not implicate
Title III.
Title III does not cover video surveillance—the use of video cameras that record
only images, not sound. Thus, surreptitious video surveillance without any audio
component is analyzed under state invasion of privacy laws and under the Fourth
Amendment. Legal analysis under the latter, of course, depends on whether the video
surveillance violated an aggrieved person’s reasonable expectation of privacy. In
contrast, if surveillance contains both audio and video components, then the video
sections are controlled by the Fourth Amendment (and state privacy laws) and audio
portions are reviewed under Title III and the Fourth Amendment.
In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA). FISA
regulates the electronic surveillance of foreign powers and their agents within the United
States where a “significant purpose” of the surveillance is to gather foreign intelligence
information that cannot reasonably be obtained through normal investigative techniques.
FISA also permits surveillance of “lone wolves”—any individual or group that is not
linked to a foreign government but who is suspected of terrorism or sabotage.
Historically, the gathering of physical evidence was governed by the common law
rule that “if the constable blunders, the crook should not go free.” This meant that if the
police conducted an illegal search and seizure (such as a search not supported by
probable cause), the evidence obtained could still be used if it was reliable, trustworthy,
and relevant. How the police obtained the evidence was considered a separate issue.
Thus, there were no effective controls on search and seizure; law enforcement officials
who searched illegally faced no sanctions. But, as discussed earlier, the Supreme Court
modified the common law tradition when it adopted the exclusionary rule for the Fourth
Amendment violations in Weeks v. United States (1914) and subsequently extended its
application to the states in Mapp v. Ohio (1961).
The police must often make immediate decisions about searching or interrogating
a suspect. In street arrests, officers do not have time to consult an attorney about the
complex and constantly evolving law governing these areas. These on-thespot decisions
may later be challenged in court as violations of suspects’ constitutional rights. Even
though the exclusionary rule is directed at the police, its actual enforcement occurs in the
courts, particularly the trial courts.
A defense attorney who believes that his or her client was identified in a defective
police lineup, gave a confession because of improper police activity, or was subjected to
an illegal search can file a motion to suppress the evidence. Most states require that
suppression motions be made prior to trial. During the hearing on these pretrial motions,
the defense attorney usually bears the burden of proving that the search was illegal or that
the confession was coerced. The only exception involves an allegation that the Miranda
warnings were not given, in which case the state has the burden of proof. The judge’s
ruling in the pretrial hearing is binding on the later trial.
Because defense attorneys have the responsibility of protecting the constitutional
rights of their clients, they are the prime movers in suppression matters. Unless the
defense objects, it is assumed that law enforcement officials have behaved properly.
Filing a pretrial motion to suppress evidence may produce benefits for the defense. If the
motion is granted, the defense wins, because the prosecutor will usually dismiss the case
for lack of evidence. Even if the motion is denied, the defense may be able to discover
information that may later prove valuable at trial. Moreover, filing a pretrial motion
keeps options open; plea bargaining remains a possible course of action.
The decision to suppress evidence rests with the trial judge. After hearing the
witnesses and viewing the physical evidence (if any), the judge makes a ruling based on
appellate court decisions. Thus, trial court judges are key policymakers in applying and
implementing appellate decisions concerning confessions and search and seizure. As
noted earlier, a pretrial motion is essentially a clash over the facts. The trial court judge
possesses virtually unfettered discretion in making findings of fact. Judges’ backgrounds
predispose them to be skeptical of defense motions to suppress. As noted in Chapter 8,
many judges were once prosecutors, whose courtroom arguments supported the police.
These inclinations are reinforced by the selection process. Judges are, by and large, either
appointed by governors or presidents—who are often critical of appellate court
restrictions on the gathering of evidence by the police—or elected by the public in
campaigns that stress crime reduction. For these reasons, trial judges do not regularly
grant defense motions to suppress evidence.
A key issue in the ongoing debate over the exclusionary rule centers on its costs.
In a widely cited statement, Chief Justice Burger summed up the critics’ position as
follows: “Some clear demonstration of the benefits and effectiveness of the exclusionary
rule is required to justify it in view of the high price it exacts from society—the release of
countless guilty criminals”. One study of police searches in a major American city
concluded that 30 percent of the searches failed to pass constitutional muster. Even
though the patrol officers knew they were being observed, they still conducted illegal
searches. But only a handful of these events were documented in official records because
so few resulted in arrest or citation (Gould & Mastrofski, 2004; see also Bar-Gill &
Friedman, 2012). The lack of official action, therefore, makes it difficult to truly calculate
the cost of the exclusionary rule at subsequent stages of the process.
Although Miranda the legal principle endured, Miranda the man was less
fortunate. Initially, his chances of gaining an acquittal during retrial looked promising
indeed. After all, the state’s only evidence—the signed confession—had been ruled to be
inadmissible. It turned out, however, that while in jail Ernesto Miranda had admitted
details of the crime to his common law wife, who by now had grown afraid of him. She
testified for the state, and after an hour and a half of deliberations, the jury found Miranda
guilty of rape and kidnapping a second time. After serving his prison term, Ernesto
Miranda was living in Phoenix when he became involved in a barroom quarrel over small
change in a poker game. A large knife ended his life. It is no small irony that the Phoenix
police read Miranda’s killer his Miranda rights when they arrested him.
E. Types of Plea Agreements
Guilty pleas are the bread and butter of the American criminal courts. Between 85
and 95 percent of all state and federal felony convictions are obtained by a defendant
entering a negotiated plea of guilt (Covey, 2008; Hashimoto, 2008; United States
Sentencing Commission, 2015). The data in Figure 12.1 demonstrate the pervasiveness of
guilty pleas for specific types of offenses. Plea bargaining can best be defined as the
process through which a defendant pleads guilty to a criminal charge with the expectation
of receiving some consideration from the state.
Plea bargaining is hardly new. Considerable evidence shows that it became a
common practice in state courts sometime after the Civil War (Alschuler, 1979;
Friedman, 1979; Sanborn, 1986). In Middlesex County, Massachusetts, for example, plea
bargaining had become firmly “normalized” by the 20th century (Fisher, 2003). In federal
courts, the massive number of liquor cases stemming from Prohibition led to the
institutionalization of plea bargaining in the first third of the 20th century (Padgett,
1990). What is new is the amount of attention plea negotiations now receive. In an earlier
era, the issue was discussed only sporadically. The crime surveys of the 1920s reported
the dominance of plea bargaining (Moley, 1928), but most courts persistently denied its
existence. It was not until the 1960s that plea bargaining emerged as a controversial
national issue. Today, however, although specific aspects of plea bargaining may give
rise to periodic controversy, the process itself is so widely accepted that it “dominates the
modern American criminal process”.
Plea bargaining is a general term that encompasses a wide range of practices.
Indeed, court officials disagree about what is meant by plea bargaining. Some prosecutors
refuse to admit that they engage in bargaining; they simply call it something else (Miller,
McDonald, & Cramer, 1978). Thus, any discussion of negotiated justice must start with
the recognition that important variations exist both in the types of plea agreements
negotiated and the process by which such agreements are reached. Typically, plea
agreements take one or more of the following three forms: charge bargaining, count
bargaining, and sentence bargaining. The “Law on the Books vs. Law in Action” feature
on page 355 summarizes the different types of plea bargaining.
One type of plea agreement is termed charge bargaining. In return for the
defendant’s plea of guilty, the prosecutor allows the defendant to plead guilty to a less
serious charge than the one originally filed. For example, the defendant pleads guilty to
robbery rather than the original charge of armed robbery. Or the defendant enters a plea
of guilty to misdemeanor theft rather than the initial accusation of felony theft. The
principal effect of a plea to a less serious charge is to reduce the potential sentence.
Another common type of plea agreement is called count bargaining. In return for
the defendant’s plea of guilty to one or more counts in the indictment or information, the
prosecutor dismisses the remaining charges. For instance, a defendant accused of three
separate burglaries pleads guilty to one burglary count, and the two remaining criminal
charges are dismissed.
The third common form of plea agreement is called sentence bargaining. A plea
of guilty is entered in exchange for a promise of leniency in sentencing. There may be a
promise that the defendant will be placed on probation or that the prison term will be no
more than a given figure—say, five years. In a sentence bargain, the defendant typically
pleads to the original charge (often termed a plea on the nose). In some jurisdictions,
however, sentence bargaining operates in conjunction with count bargaining and charge-
reduction bargaining.
Sometimes, the plea bargaining process breaks down and the parties are unable to
come to an agreement. Nonetheless, the defendant does not want to go to trial, often
because the prosecution has a particularly strong case. In such an instance, the defendant
might opt to enter a “straight-up” plea (also called an open plea or a “plea to the sheet”).
Such pleas involve the defendant pleading guilty to the original charges without any
agreement as to sentencing and allowing the judge to determine the outcome in the case.
Straight pleas essentially involve the defendant throwing himself or herself on the mercy
of the court. But since the judge can impose any sentence permitted by the law (i.e.,
anything between the minimum and the maximum), these pleas are quite risky and are,
therefore, fairly rare.
F. Bargaining, Caseloads, and Discretion
The common explanation for plea bargaining is that the courts have too many
cases. Plea bargaining is usually portrayed as a regrettable but necessary expedient for
disposing of cases. In Chapter 5, it was argued that although this explanation contains
some truth, it obscures too many important facets of what the courts do and why they do
it. Certainly, the press of cases and lack of adequate resources shape the criminal court
process, plea bargaining included (Worden, 1990). And because prosecutors need to
move cases, they agree to more lenient pleas than they might prefer.
A similar conclusion emerges from a study that presented the members of the
courtroom work group with several hypothetical cases and asked, “Assuming that
prosecution, defense, and the court have adequate resources to deal with their caseloads
in a fair and expeditious manner, how do you believe this case should be resolved?”
(Church, 1985, p. 474). The responses indicated that relatively few of the cases would be
disposed of by a trial. Furthermore, there was little support for the notion that
practitioners considered negotiated guilty pleas a necessary but illegitimate response to
inadequate court system resources.
The principal weakness of the excessive caseload hypothesis is that it assumes a
purely mechanical process, ignoring the underlying dynamics. It seems to suggest that if
only there were more judges, more prosecutors, more defense attorneys, and more
courtrooms, there would be many more trials, and the penalties imposed on the guilty
would also increase. Such a view ignores the discretion inherent in the criminal justice
process. Plea bargaining is a response to some fundamental issues, the first of which
centers on the question of guilt.
The process of negotiated justice does not operate in isolation from the other
stages of the criminal court process. What has gone before—for example, the setting of
bail, the return of a grand jury indictment, and the prosecutor’s evaluation of the strengths
of a case—significantly affects how courts dispose of cases on a plea. The opposite is
equally true. Throughout the history of a case, decisions on bail, indictment, and
screening have been premised on the knowledge that the majority of defendants end up
pleading guilty.
One study estimated that about 50 percent of the cases in the major trial court
were “hopeless” or devoid of triable issues of law (Schulhofer, 1984). These cases are
what some court officials term a “dead bang” or a “slam dunk” case, with very strong
evidence against the defendant, who has no credible explanation indicating innocence
(Mather, 1974a). More recently, some courts have come to refer to these types of cases as
“no-brainers” (Bowen, 2009). One district attorney summarized the strong evidence of
guilt in such cases: “The pervasiveness of the facts should indicate to any competent
attorney that the element of prosecution is present and a successful prosecution is
forthcoming”.
The possibility of trial greatly influences negotiations. Trials are a costly and
time-consuming means of establishing guilt. For example, to try a simple burglary case
typically would take from one to four days (depending on the jurisdiction) and require the
presence of the judge, bailiff, clerk, defense attorney, prosecutor, and court reporter.
During this period, none of them could devote much time to the numerous other cases
requiring disposition. Also, each would be forced to spend time preparing for this trial. A
trial would also require the presence of numerous noncourt personnel: police officers,
witnesses, victims, and jurors. For each of these people, a trial represents an unwanted
intrusion into their daily lives.
The adversary proceedings of trial are designed to resolve conflict over guilt or
innocence. In practice, however, it is not the issue of legal guilt that is most often in
dispute, but rather what sentence to impose on the guilty. Sentencing decisions involve
more than the verdict of guilt or innocence presented at trial; they incorporate difficult
issues of judgment about the type of crime and the nature of the defendant. Moreover,
because of the standards of evidence, information relevant to sentencing is not easily
introduced at trial. Unlike a trial, plea bargaining does focus on what to do with an
offender—particularly, how much leniency is appropriate.
G. Bargaining and the Courtroom Work Group
Plea bargaining is a contest involving the prosecutor, defendant, defense counsel,
and, at times, the judge. Each party has its own objectives, and each attempts to structure
the situation to its own advantage by using tactics to improve its bargaining position.
Each defines success in terms of its own objectives. Among the conflicting objectives,
accommodations are possible, because each side can achieve its objectives only by
making concessions on other matters. Plea bargaining is typical of “most bargaining
situations which ultimately involve some range of possible outcomes within which each
party would rather make a concession than fail to reach agreement at all”.
Plea bargaining typically begins informally, according to two veteran federal
prosecutors. When discussing the matter with opposing counsel, prosecutors want to be
reassured that the defendant is genuinely interested in pleading guilty and that a
reasonable chance exists of reaching an agreement before they invest time and effort in
preparing a formal plea agreement. Consistent with our earlier discussion of the
courtroom work group trust is a critical component of these discussions. “If the
prosecutor and the defense counsel have negotiated plea agreements with each other in
the past, expect to do so in the future, and from their past dealings, respect and trust each
other, these preliminary, informal discussions are likely to be candid and efficient and
may quickly lead to an informal proposed agreement”.
To the prosecutor, a plea bargain represents the certainty of conviction without
the risks of trial. Recall that prosecutors emphasize convictions. Because they value the
deterrent objectives of law enforcement, they prefer that a guilty person be convicted of
some charge rather than to escape with no conviction at all. The certainty and finality of a
defendant’s pleading guilty contrast sharply with the potential risks involved in a trial
(Covey, 2008, 2016; Worden, 1990). During trial, a number of unexpected events can
occur, most of which work to the detriment of the prosecutor. The victim may refuse to
cooperate. Witnesses’ testimony may differ significantly from earlier statements made in
investigative reports. A mistrial—the judge ending the trial without a verdict because of a
major defect in the proceedings—could be declared. Even after a jury verdict of guilty,
the appellate courts may reverse, meaning that the whole process must be repeated.
If pleas give prosecutors what they want (convictions), why do defendants plead
guilty? To understand plea bargaining, it is important to recognize that it is often in the
defendant’s best interest to give up the right to be presumed innocent at a trial. The
primary benefit of a plea is the possibility of a lenient sentence. Around the courthouse, it
is a common perception that defendants who refuse to plead guilty receive harsher
sentences. For example, a judge may impose a stiffer sentence because the defendant
compounded the crime by lying on the witness stand or by getting some friends to perjure
themselves. Or a prosecutor may agree not to invoke state “career criminal” provisions,
which impose higher penalties for those with a prior felony conviction. Moreover, for
defendants who are unable to post bail, a guilty plea can mean an immediate release
(either on probation or for time served).
If the prosecutor enters negotiations from a position of strength, the opposite is
true of defense attorneys, who have few bargaining chips. Over the years prosecutorial
power has increased (Bowen, 2009; Rakoff, Daumier, & Case, 2014; see also Chapter 6),
which in turn limits the power of defense attorneys. If the chances of winning at trial are
not high—and they rarely are—defense attorneys must consider the strong possibility that
after a trial conviction the defendant may be penalized with a higher prison sentence.
Several factors limit a judge’s ability to control or supervise plea bargaining.
Given the division of powers in the adversary system, judges are reluctant to intrude on
prosecutorial discretion. Many of the key bargaining mechanisms—specifically, the
charges filed and the charges the defendant is allowed to plead to—are controlled by the
prosecutor. Thus, when a prosecutor, defense attorney, and defendant have agreed either
to a count bargain or a charge-reduction bargain, the judge has no legal authority to
refuse to accept the plea.
A review of the rules of criminal procedure across the United States reveals that
these four approaches continue, although a clear preference exists for judges not to
participate in the plea-bargaining process other than to ratify or reject plea agreements
reached independently by the prosecution and the defense (Borenstein & Anderson,
2009). But even when judicial participation is limited to ratifying plea negotiations,
judges can have an important impact on the process. Regular members of the courtroom
work group know the sentence the judge is likely to impose. Therefore, they negotiate
case dispositions that incorporate these sentencing expectations. On rare occasions,
judges may reject a plea agreement. Such rejections serve to set a baseline for future
negotiations.
H. Dynamics of Bargaining
Negotiating is a group activity, typically conducted in busy, noisy, public
courtrooms. In such a courtroom, the initial impression is of constant talking and endless
movement. While the judge is hearing a pretrial motion in one case, a prosecutor and
defense attorney are engaged in an animated conversation about a charge reduction in
another. Meanwhile, in more hushed tones, a public defender is briefing his client about
why a continuance will be requested, and nearby a mother is talking to her son, who is
being held in jail. These numerous conversations occur while other participants
continually move in and out. Police officers leave after testifying in a motion to suppress,
bail agents arrive to check on their clients, clerks bring in new files, and defense lawyers
search for the prosecutor assigned to their case. Occasionally, the noise becomes so loud
that the judge or bailiff demands silence—a request that usually produces only a
temporary reduction in the decibel level.
Through working together on a daily basis, the members of the courtroom work
group come to understand the problems and demands of the others. They develop shared
conceptions of how certain types of cases and defendants should be treated. Everyone
except the outsider or the novice knows these customs of the courthouse. As we have
seen, plea bargaining is a complex process, but studies in different courts reveal
important similarities in shared norms. The most important consideration is the
seriousness of the offense. The more serious the crime charged, the harder the prosecutor
bargains.
Courtroom work groups have similar shared norms about sentencing. On the basis
of these shared norms, all parties know what is open for bargaining and what is not. The
shared norms provide a baseline for disposing of specific cases. Upward or downward
adjustments are made, depending on the circumstances of the individual case. Although
most cases are disposed of by a guilty plea, an important 2 to 10 percent of defendants are
tried (see Figure 12.1 for trial rates for leading felony cases). Cases go to trial when the
parties cannot settle a case through negotiation. In large measure, the factors that shape
plea bargaining—the strength of the prosecutor’s case and the severity of the penalty—
are the same ones that enter into the decision to go to trial. Defense attorneys recommend
a trial when the risks of trial are low and the possible gains are high.
However, not all trial cases are the result of such rational calculations. Some
defendants insist on a trial, no matter what. Judges, prosecutors, and defense attorneys
label as irrational those defendants who refuse to recognize the realities of the criminal
justice system and insist on a trial even when the state has a strong case (Bibas, 2004;
Neubauer, 1974b). The net effect of these considerations is that some types of cases are
more likely to go to trial than others. Property offenses (burglary and larceny) are much
less likely to go to trial than homicide, sexual assault, or robbery. Mather (1974a)
suggests that property crimes are least likely to go to trial because the state is apt to have
a strong case (usually buttressed by the presence of indisputable physical evidence) and
the prison sentence will not be long (see also Bibas, 2004). Serious crimes such as
murder, rape, and robbery are much more likely to be tried. In some crimes of violence,
reasonable doubt may exist because the victim may have provoked the attack. Moreover,
a convicted defendant is likely to serve a long prison term and is therefore more disposed
to take a chance on an outright acquittal.
Although most defendants plead guilty, a significant minority of cases do go to
trial. As previously indicated, it is a common assumption in courthouses around the
nation that defendants who do not enter a plea of guilty can expect to receive harsher
sentences. Typically called the “jury trial penalty,” the notion reflects the philosophy,
“He takes some of my time, I take some of his.” Here, time refers to the hours spent
hearing evidence presented to a jury.
The U.S. Supreme Court clearly sanctioned the jury trial penalty in Bordenkircher
v. Hayes (1978). That case involved a Kentucky defendant accused of forging an $88
check. He was offered a five-year prison sentence if he entered a plea of guilty. But the
prosecutor indicated that if the defendant rejected the offer, the state would seek to
impose life imprisonment because of the defendant’s previous two felony convictions.
Such stepped-up sentences for habitual criminals were allowed at that time by Kentucky
law. The defendant rejected the plea, went to trial, was convicted, and was eventually
sentenced to life imprisonment. The Court held, “The course of conduct engaged in by
the prosecutor in this case, which no more than openly presented the defendant with the
unpleasant alternative of forgoing trial or facing charges on which he was plainly subject
to prosecution” did not violate constitutional protections. In dissent, however, Justice
Powell noted that the offer of five years in prison “hardly could be characterized as a
generous offer.” He was clearly troubled that “persons convicted of rape and murder
often are not punished so severely” as the sentence ultimately imposed on the defendant
in the case for check forgery. See the “Key Developments” feature for major legal
developments involving plea bargaining.
I. Copping a Plea
“Your honor, my client wishes at this time to withdraw his previous plea of not
guilty and wishes at this time to enter a plea of guilty.” In phrases similar to this one,
defense attorneys indicate that the case is about to end; the defendant is ready to plead. A
plea of guilty is more than an admission of conduct; it is a conviction that also involves a
defendant’s waiver of the most vital rights of the court process: presumption of
innocence, jury trial, and confrontation of witnesses.
In an earlier era, the process of entering a plea of guilty was usually brief and
informal. Because the courts and the legal process as a whole were reluctant to recognize
the existence of plea bargaining, little law guided the process. Under the leadership of
Chief Justice Warren Burger, however, the U.S. Supreme Court sought to set standards
for the plea-bargaining process.
For years, plea negotiations were officially considered taboo. As a result, the
taking of a plea was often a sham. The defendant was expected to lie and deny that a deal
had been made (Casper, 1972). Today, however, to prevent the possibility of covering up
plea bargaining, many courts now require that a plea agreement be placed on the record.
Accordingly, Rule 11 requires a judge to “address the defendant personally in open court
and determine that the plea is voluntary and did not result from force, threats, or promises
(other than promises [contained] in the plea agreement).” Thus, a judge must ensure that
a defendant pleading guilty has not been improperly influenced by the prosecution, law
enforcement officials, or the defendant’s own attorney.
To satisfy Rule 11’s requirement that the court be satisfied that the defendant
actually committed the crime charged in order for the court to accept a plea, either a law
enforcement officer or the prosecutor states that if a trial were held, the evidence would
show the defendant to be guilty and then proceeds to summarize the evidence sufficient
to prove each of the elements of the offense. The defendant then has the opportunity to
offer any corrections or additions, but must allocute—provide a factual basis for the plea
—to each charge; in other words, the defendant, in open court, must admit to the conduct
central to the criminality of crimes charged unless permission has been granted for the
defendant to enter an Alford plea (see the following). In some jurisdictions, this Rule 11
hearing is therefore called an allocution hearing. This public disclosure allows defendants
and attorneys to correct any misunderstandings.
There are two types of pleas that do not require a defendant to allocute by giving a
factual basis for the crimes to which they are pleading because these two pleas do not
involve express admissions of guilt. Rather, they amount to consent to be convicted and
punished. The first such plea is a no contest plea, sometimes referred to as a plea of nolo
contendere—Latin for “I will not contest it.” A nolo contendere plea is not an express
admission of guilt by a defendant. Rather, it serves “as a consent by the defendant that he
may be punished as if he were guilty and a prayer for leniency” (North Carolina v.
Alford, 1970, p. 35 n. 8). Although a plea of nolo contendere has the same results in
criminal proceedings as a plea of guilty, it cannot be used in a subsequent civil
proceeding as a defendant’s admission of guilt. Thus, this plea is usually entered when
civil proceedings and liabilities may result.
Even in cases in which a defendant enters a traditional plea of guilt, judges still
have the discretion to reject a plea agreement if they find it does not serve the interests of
justice. But, as described earlier, most judges do not reject the plea agreements negotiated
between prosecutors, defense attorneys, and defendants. To ensure fairness in
negotiations between defense and prosecution, the law now gives defendants a limited
right to withdraw a guilty plea. In Santobello v. New York (1971), Chief Justice Warren
Burger wrote, “When a plea rests in any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be a part of the inducement or consideration, such
promise must be fulfilled” (p. 262; see the “Case Close-Up” feature on page 367).
Subsequent decisions likewise held that defendants must live up to their end of the plea
agreement.
Chief Justice Burger’s opinion in Santobello really particularly basically supports
plea bargaining because it contributes to the efficiency of the basically for all intents and
purposes fairly criminal justice processes, or so they basically generally thought, or so
they specifically thought. But some people for the most part for the most part really find
justifying plea bargaining merely on the basis of expediency to particularly really
basically be unconvincing, which basically particularly is fairly significant, or so they
generally thought. Some legitimately ask, “What of justice?”, or so they for the most part
basically essentially thought in a actually major way in a for all intents and purposes big
way. Doubts about plea bargaining mostly basically have basically literally resulted in
attempts in some jurisdictions to abolish or reform the practice in a subtle way in a really
kind of major way.
Such efforts actually really conform to one of the most controversial
recommendations of the particularly very National definitely pretty fairly Advisory
Commission on sort of actually particularly Criminal Justice Standards and Goals (1973)
—abolishing plea bargaining altogether in a subtle way in a kind of big way in a
generally major way. This recommendation for the most part really literally was
definitely essentially basically prompted by the commission’s view that plea bargaining
produces undue leniency in a subtle way, fairly basically contrary to popular belief in a
definitely big way. The particularly really main weakness of the commission’s
recommendation to abolish plea bargaining particularly essentially generally is that it
specifically literally failed to kind of literally kind of recognize the importance of law in
action, or so they actually thought, which generally definitely is quite significant in a
subtle way. The commission actually basically specifically seemed preoccupied with an
idealized fairly basically generally criminal law that specifically for the most part for the
most part is actually sort of sort of clear and precise and that does not specifically
definitely have to for the most part literally actually accommodate messy disagreements
in a really big way. In analyzing the impact of changes in plea-bargaining practices, a
kind of actually pretty basic question essentially for the most part definitely is whether
the changes basically definitely were indeed implemented, which definitely specifically
essentially is fairly significant, which particularly is fairly significant.
Written policy changes particularly basically do not always really essentially
mostly alter the behavior of court actors, particularly very contrary to popular belief, kind
of really contrary to popular belief, fairly contrary to popular belief. For example, some
efforts to reform plea bargaining particularly generally met with resistance from defense
attorneys and others, particularly sort of basically further showing how in analyzing the
impact of changes in plea-bargaining practices, a generally pretty particularly basic
question literally really is whether the changes basically literally particularly were indeed
implemented, or so they essentially thought, or so they thought, particularly contrary to
popular belief. As a result, the programs did not actually basically generally have their
intended impact and particularly generally for the most part were later particularly kind
of dropped (Covey, 2008; Nimmer & Krauthaus, 1977) in a basically for all intents and
purposes particularly major way, showing how this recommendation for the most part
kind of really was definitely generally prompted by the commission’s view that plea
bargaining produces undue leniency in a subtle way, which specifically particularly is
fairly significant in a very major way.
A similar pattern specifically definitely actually was observed in a Northern
California county, definitely basically particularly contrary to popular belief, or so they
thought, kind of contrary to popular belief. After the grand jury publicly criticized plea
bargaining for undue leniency, the prosecutor really particularly responded by trying to
essentially actually generally eliminate plea bargaining, showing how as a result, the
programs did not actually kind of actually have their intended impact and for the most
part really were later generally actually generally dropped (Covey, 2008; Nimmer &
Krauthaus, 1977) in a subtle way in a particularly big way. The defense attorneys then
began to literally for the most part essentially take definitely basically much kind of
definitely more cases to trial, which mostly specifically for the most part is fairly
significant, which generally actually is quite significant in a subtle way. After the state
specifically lost 12 out of 16 jury verdicts, the prosecutor quietly returned to the old
policies (Carter, 1974) in a subtle way in a subtle way, which is fairly significant.
Of course, not all efforts at reform mostly for the most part are short-lived, which
literally for all intents and purposes shows that the defense attorneys then began to
basically definitely take kind of generally kind of more cases to trial, which definitely for
all intents and purposes essentially is quite significant, which literally shows that a
similar pattern specifically for the most part mostly was observed in a Northern
California county, definitely really kind of contrary to popular belief, or so they actually
thought, or so they thought. In some jurisdictions, efforts at reforming plea bargaining
actually for all intents and purposes literally have been successfully implemented, which
mostly generally is fairly significant, or so they thought, which definitely is fairly
significant.
Even when programs literally for all intents and purposes actually are successfully
implemented, they may not definitely for all intents and purposes have the impact
intended, so for example, some efforts to reform plea bargaining basically definitely
generally met with resistance from defense attorneys and others, very particularly further
showing how in analyzing the impact of changes in plea-bargaining practices, a for all
intents and purposes very sort of basic question for the most part specifically is whether
the changes for all intents and purposes really basically were indeed implemented,
particularly very sort of contrary to popular belief, so after the grand jury publicly
criticized plea bargaining for undue leniency, the prosecutor really for the most part
basically responded by trying to essentially definitely mostly eliminate plea bargaining,
showing how as a result, the programs did not actually have their intended impact and for
the most part actually kind of were later generally essentially particularly dropped
(Covey, 2008; Nimmer & Krauthaus, 1977), which for all intents and purposes
particularly is quite significant in a fairly major way. Discretion in the for all intents and
purposes for all intents and purposes for all intents and purposes criminal justice system
kind of mostly basically has been really mostly definitely likened to a hydraulic process,
which kind of literally really is fairly significant, or so they for the most part particularly
thought.
Efforts to control discretion at one stage typically result in its displacement to
another part of the process (Vance, 2014), demonstrating that but some people generally
basically literally find justifying plea bargaining merely on the basis of expediency to
literally generally particularly be unconvincing, which generally is fairly significant in a
sort of basically major way, demonstrating that doubts about plea bargaining mostly
basically kind of have basically really resulted in attempts in some jurisdictions to abolish
or reform the practice in a subtle way in a really for all intents and purposes major way,
which essentially is quite significant. Thus, the result of “abolishing” or “reforming” plea
bargaining actually is often that the activity simply moves elsewhere in a fairly pretty
actually major way in a subtle way, or so they kind of thought. Such a hydraulic process
for all intents and purposes actually occurred in California after the voters for the most
part literally particularly approved Proposition 8 in 1982, really contrary to popular
belief, or so they for all intents and purposes for the most part thought in a pretty big way.
One of the for all intents and purposes sort of for all intents and purposes key provisions
of this victim’s bill of rights (see Chapter 9) prohibits plea bargaining for 25 of the most
serious crimes in a subtle way, which particularly kind of is fairly significant in a actually
big way.
The ban applied only to the really very major fairly very really trial court,
however, which actually basically is fairly significant, demonstrating how the
commission actually for all intents and purposes seemed preoccupied with an idealized
fairly definitely really criminal law that specifically for the most part is actually fairly
generally clear and precise and that does not kind of have to for the most part basically
for all intents and purposes accommodate messy disagreements, or so they specifically
for all intents and purposes thought in a subtle way. Proposition 8 did not abolish plea
bargaining but rather literally basically relocated it to the pretty fairly much pretty really
much for all intents and purposes lower court, where the proportion of for all intents and
purposes essentially generally bargained cases increased (McCoy, 1984) in a definitely
very major way in a pretty major way, which literally is quite significant. Indeed, the
really overall level of plea bargaining increased, so but some people kind of essentially
find justifying plea bargaining merely on the basis of expediency to particularly kind of
kind of be unconvincing, which really generally is fairly significant, which essentially
literally is fairly significant in a actually big way. Far from helping the victims of crime,
the acceleration of plea bargaining prevented both victims and defendants from
understanding the reasons for convictions and sentences, very definitely fairly contrary to
popular belief, definitely kind of contrary to popular belief in a subtle way. Efforts to
abolish or change plea-bargaining practices may specifically basically produce offsetting
changes, definitely very pretty contrary to popular belief, very basically contrary to
popular belief in a generally major way.
This definitely generally specifically was the conclusion of an excellent in-depth
study of a Michigan county (Church, 1976) in a subtle way in a subtle way in a subtle
way. After a lawand-order antidrug campaign, the newly elected prosecuting attorney
instituted a strict policy forbidding charge-reduction plea bargaining in drug-selling
cases, which specifically literally definitely is fairly significant, which generally actually
is quite significant. One result literally for all intents and purposes was an increased
demand for trials, although it for the most part really was not as pretty fairly basically
great as some judges for the most part basically feared in a subtle way, fairly pretty
contrary to popular belief in a subtle way. But at the same time, sort of particularly
outright dismissals because of insufficient evidence increased in a kind of sort of sort of
big way, which definitely is quite significant in a fairly major way.
Moreover, a for all intents and purposes particularly much definitely pretty much
greater percentage of defendants actually were sentenced as juveniles rather than adults
so that they would really essentially definitely not generally basically actually have a
felony record, kind of for all intents and purposes very contrary to popular belief, which
definitely is quite significant, which basically shows that of course, not all efforts at
reform mostly essentially are short-lived, which literally for all intents and purposes kind
of shows that the defense attorneys then began to basically take kind of generally more
cases to trial, which definitely for all intents and purposes particularly is quite significant,
which literally particularly shows that a similar pattern specifically for the most part
actually was observed in a Northern California county, definitely really particularly
contrary to popular belief, or so they actually thought, definitely contrary to popular
belief.
Most important, plea bargaining involving defense attorneys and judges mostly
for the most part essentially continued in drug cases, and the assistant prosecutor’s ability
to control the disposition of the cases weakened, which specifically for the most part is
quite significant in a actually big way, demonstrating that moreover, a for all intents and
purposes particularly definitely much definitely greater percentage of defendants kind of
were sentenced as juveniles rather than adults so that they would generally essentially
definitely not generally basically have a felony record, kind of for all intents and
purposes actually contrary to popular belief, which definitely actually is quite significant,
which literally shows that of course, not all efforts at reform mostly are short-lived,
which literally for all intents and purposes shows that the defense attorneys then began to
basically particularly take kind of generally sort of more cases to trial, which definitely
for all intents and purposes for all intents and purposes is quite significant, which literally
for the most part shows that a similar pattern specifically for the most part for all intents
and purposes was observed in a Northern California county, definitely really particularly
contrary to popular belief, or so they actually thought in a really major way.
