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Plea Bargain Waivers Reconsidered: A Legal Pragmatist's Guide to Loss, Abandonment and Alienation

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  • Federal Public Defender
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... Un particular contexto de justificación: la inexistencia de hipótesis rivales propuestas por la defensa Al margen del estándar probatorio necesario para proponer el acuerdo -que, como ya vimos, es equivalente a aquel exigible para llevar un caso a juicio-, estos procedimientos cuentan también con una declaración a través de la cual el acusado no controvierte que los hechos se desarrollaron de conformidad con el relato contenido en la hipótesis de la fiscalía 54 . Entonces, en el contexto epistémico final, en el -desde la teoría unconstitucional conditions, hasta las reglas de los contratos, el derecho de propiedad y el debido proceso legal-puede leerse en Blank, 2000Blank, : 2060Blank, -2085. Una argumentación en torno a la posible insuficiencia de la revelación según "Brady" para el caso de los acuerdos de culpabilidad, puede verse en Douglass, 2001. ...
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La autora discute una posición relativamente extendida en el ámbito del Derecho Procesal Penal, según la cual la implementación de procedimientos de omisión del juicio penal o acuerdos de culpabilidad implica, necesariamente, la adopción de una noción de verdad distinta a la correspondencia con la realidad. Para ello, primero defiende la vigencia y la importancia de ese concepto de verdad en estos mecanismos y, luego, argumenta que existen razones morales, independientes a la búsqueda de la verdad, que justifican exigir a la fiscalía, a la hora de proponer un acuerdo de culpabilidad, que satisfaga el mismo estándar probatorio necesario para requerir la realización de un juicio ordinario. Finalmente, reflexiona sobre las implicancias que aquella exigencia, junto con otras características propias de este tipo de procedimientos, tienen en el mejoramiento de las condiciones epistémicas en las que tomamos la decisión sobre la quaestio facti en el contexto de los acuerdos de culpabilidad.
... Prosecutors seem to be going "waiver crazy" these days, trying to insulate all plea agreements from collateral attack on any grounds in order to achieve finality to the criminal process. 63 Emboldened by Ruiz and the tendency of courts to view plea agreements primarily thought the lens of 14 contract, 64 prosecutors now routinely include in their standard plea agreements waiver of the right to appeal the court-imposed sentence; waiver of the right to challenge the conviction or sentence through collateral attack, such as by habeas petition; 65 waiver of statutory rights, such as the Speedy Trial Act; 66 waiver of the right to contest asset forfeiture; waiver of the right to contest deportation; and so forth. The emerging trend seems to be "let's throw every possible waiver"⎯including a waiver to the kitchen sink⎯into a plea agreement and see what will stick. ...
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In this article the author explores what it means for a prosecutor to “do justice” in a plea bargaining context. Although the vast majority of criminal cases in the United States are resolved by guilty plea rather than by trial, ABA Model Rule 3.8, the special disciplinary rule applicable to prosecutors, has very little to say about plea bargaining. Scrutinizing the multiplicity of interests at stake in plea bargaining, the author suggests that a prosecutor’s primary objectives during negotiations should be efficiency, equality, autonomy, and transparency. After defining each of these terms, the author identifies several troublesome and recurring practices employed by prosecutors in the plea bargaining context that in his view violate a prosecutor’s duty to “do justice,” but yet presently are entirely unregulated. He then demonstrates how a focus on efficiency, equality, autonomy and transparency might help prosecutors avoid these ethical minefields.
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The article deals with a number of theoretical issues of the waiver, in particular, the concept and types of waiver of the right to a confrontation. The author shows the correlation between the concepts «waiver of the right» and «loss of the right» and points out that when a person commits an unlawful act, he waives the right to a confrontation and hinders the normal course of court hearings through the unlawful influence on trial participants, evasion from proceedings or unauthorized leaving of a courtroom. If the defendant impedes the natural progress of court hearings, he is warned about the possibility of being removed from the courtroom if the unlawful conduct does not stop. If he continues to commit unlawful acts during the court session, then he in fact waives his right to participate in the court hearing and the right to a confrontation (loses these rights). The author points out that in practice there are cases when the accused person evades the investigation and stays on the wanted list for years or when a person leaves for another country to evade the investigation and, as a result, is deprived of an opportunity to interrogate the witnesses who testified against him because these witnesses are no longer available, for example, they have died, or are in the country where the crime was committed. The author also considers the situations when the accused leaves the court hearing with-out authorization as a waiver of the right to confrontation. In this case the accused does not insist on his right and waives these constitutional privileges because he was given a right to confrontation but chose not to use it and not to meet the witnesses who have testified against him. © 2019, Baikal National University of Economics and Law. All rights reserved.
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Ninety-seven percent of federal convictions are the result of guilty pleas. Despite the criminal justice system's reliance on plea bargaining, the law regarding the prosecution's duty to disclose certain evidence during this stage of the judicial process is unsettled. The Supreme Court's decision in Brady v. Maryland requires the prosecution to disclose evidence that establishes the defendant's factual innocence during a trial. Some courts apply this rule during plea bargaining and require the disclosure of material exculpatory evidence before the entry of a guilty plea. Other courts have held or suggested that the prosecution may suppress exculpatory evidence during plea bargaining, forcing the defendant to negotiate and determine whether to accept a plea offer or proceed to trial without it. Substantial disparities therefore exist in the bargaining power and decision-making ability of criminal defendants, depending on where they are charged. This Note addresses the divide in how courts approach Brady challenges to guilty pleas. After analyzing the development of plea bargaining and the Brady rule, this Note concludes that a guilty plea is not valid if made without awareness of material exculpatory evidence possessed by the prosecution. To provide additional support for the recognition of pre-guilty plea exculpatory Brady rights, this Note presents a case study of two 2012 Supreme Court decisions establishing the right to effective assistance of counsel during plea bargaining, and argues that the same justifications for recognizing that right during plea bargaining apply to Brady as well.
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There are two basic ways to think about the constitutionality of conditional funding offers from the national government to the states: as a localized problem subject to a localized solution, or as instantiating a broader problem subject to a more general analysis. The first perspective views conditional spending grants as, essentially, an issue of federalism. The second views it under the rubric of what is sometimes called “the unconstitutional conditions problem” or (preferably) “the conditional offer puzzle.” In last year’s health care decision, the Court adopted the first approach — the “particularist perspective.” That is, all Justices analyzed the constitutionality of the Medicaid expansion by reference to concepts, tests, and principles that, as far as the several opinions revealed, the authors thought particular to conditional funding grants offered from the federal government to the states. No Justices drew upon, or sought to further develop, principles or analytical frameworks that purported to be general in the sense of applying to other sorts of conditional offers of benefits — for example, conditional proposals made to individuals rather than to states, or made from state governments rather than from the national government, or made of an offer to provide some benefit other than cash or cash equivalent. This essay, prepared for an edited volume of essays concerning the health care decision, argues that the unsatisfactoriness of the Court’s analysis of the Medicaid expansion can be traced to its adoption of the particularist approach to the conditional spending problem, and it explores the “generalist” alternative of analyzing the conditional spending problem as a subtype of the more general conditional offer puzzle. The generalist alternative I offer rests upon a distinction between coercion and compulsion, along with an account of what it means to “penalize” the exercise of a right. I conclude both that those who support the Affordable Care Act should treat the states’ challenge with greater seriousness than, by and large, they have given it, and that those who already harbored doubts about the constitutionality of the Medicaid expansion have reason to be more sympathetic to a general solution to the conditional offer puzzle than was the Supreme Court.
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Rule 11 of the Federal Rules of Criminal Procedure governs perhaps the most essential and common practice in the federal criminal justice system--the guilty plea. Despite the public's focus on the excitement and drama engendered by real and fictional criminal trials, the overwhelming majority of criminal matters reach a negotiated resolution. Indeed, the importance of the guilty plea to the judiciary, prosecutors, and even defense attorneys cannot be overstated. Without guilty pleas, the criminal justice system would malfunction; the system is simply incapable of accommodating the constitutional exercise of a defendant's trial right in each instance. The federal plea process was revised in 1975 when, in response to the 1969 United States Supreme Court decision in Boykin v. Alabama, sweeping amendments to Rule 11 were enacted in order to better ensure the entry of intelligent and voluntary guilty pleas. In lieu of the comparatively scant verbiage that characterized the pre-1975 version, the new rule detailed a plea process replete with procedures designed to guide the federal judiciary and protect the due process interests of the defendant. However, twenty-five years after the implementation of the revisions, there is, at a minimum, a considerable question whether the laudable objectives underlying the reforms are being fulfilled. Indeed, this Article posits that Rule 11 has not fulfilled its original promise. Instead of protecting against unintelligent and involuntary pleas, the rule's plain language and its appellate interpretation have produced a plea process that pays little homage to the original Boykin ideals. Our public policy purportedly reflects our societal and/or political values. This Article will demonstrate how Rule 11, and its appellate construction, reflect a contorted value priority; one that unnecessarily devalues individual due process in exchange for a misperceived notion of judicial economy. To that end, this Article commences with a review of the constitutional standards that accompany guilty pleas as well as the historical evolution of Rule 11. Thereafter, Rule 11 will be discussed – with highlighted excerpts from the Theodore Kaczynski (the “Unabomber”) plea colloquy – in light of certain federal evidence rules, offender characteristic data, and economic and professional incentives that impact indigent representation. This Article will then review the most recent and significant addendums to Rule 11 – the appellate waiver and harmless error provisions--and demonstrate how these seemingly unexceptional modifications, and their subsequent judicial interpretation, have had a profoundly deleterious impact upon individual due process and are flatly inconsistent with Rule 11’ s purported underlying objectives. Finally, this Article will conclude with a suggested measure of reform. Though temperate, the proffered restructure of Rule 11 will alleviate many of the inequities associated with the current structure and restore the value priority originally contemplated in Boykin – one with a paramount concern for individual due process.
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In a criminal justice system where guilty pleas are the norm and trials the rare exception, the issue of how much discovery a defendant is entitled to before allocution has immense significance. This article examines the scope of a prosecutor’s obligation to disclose impeachment information before a guilty plea. This question has polarized the criminal bar and bedeviled the academic community since the Supreme Court’s controversial decision in United States v. Ruiz (2002). A critical feature of the debate has been the enduring schism between a prosecutor’s legal and ethical obligations – a gulf that the American Bar Association recently widened by issuing a controversial opinion interpreting Model Rule of Professional Conduct 3.8(d) to impose obligations on prosecutors well beyond the requirements of the due process clause. The author addresses the controversial subject of impeachment disclosures from both an institutional and a substantive perspective. A great deal of legal scholarship aims directly at the content of proposed law reform without considering the threshold and pivotal question of what institution is best situated to administer those duties imposed. The author argues that as a matter of institutional competence and legitimacy, the courts are far better equipped to enforce criminal discovery obligations through rules of procedure than bar disciplinary authorities are capable of doing through attorney conduct rules. With regard to the substantive issue - that is, how much impeachment evidence should be turned over by a prosecutor before a guilty plea - the author proposes a categorical approach to impeachment disclosures that will mediate the tension between the defendant’s interest in accurately assessing the strength and weaknesses of the government’s case, and the state’s interest in protecting the privacy and security of potential witnesses.
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The exceptional accuracy of DNA, and the exonerations it has produced, have led to a reconsideration of cherished, but empirically untested, notions of the reliability of the criminal justice system. They have also, albeit incompletely, provoked a renewed commitment — reflected in new ethical rules, compensation schemes, and the testing statutes themselves — to protecting the innocent. But there is a danger that, as has happened with other advances in the protections afforded to the accused, the scope of DNA testing rights and the spirit embodied in them will erode as DNA testing loses its novelty. There is evidence that this has already begun. DNA waivers — through which a defendant gives up the right to the testing, and possibly preservation, of DNA evidence — have been widely sought by the federal government. The history of similar innovations in plea bargaining suggests that these waivers may spread to the states. This Article identifies this practice for the first time in the legal literature and explores their validity, their consequences, and the justifications behind their use. It argues that although courts are likely to enforce these waivers in most circumstances, they are deeply problematic, not least because of their damaging effect on the public’s confidence in the criminal justice system.
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footnote and internal quotation omitted); see also Mezzanatto, 513 U.S
  • U L Denv
  • Rev
Denv. U. L. Rev. 941, 953 (1997) (footnote and internal quotation omitted); see also Mezzanatto, 513 U.S. at 204 ("There may be some evidentiary provisions that are so fundamental to the reliability of the factfinding process that they may never be waived without irreparably 'discredit[ing] the federal courts."').
E]arly cases invalidating appeal waivers on due process 'chill' theory simply cannot be squared with current due process doctrine as articulated by the Supreme Court
  • See Calhoun
See Calhoun, supra note 109, at 148-49 ("[E]arly cases invalidating appeal waivers on due process 'chill' theory simply cannot be squared with current due process doctrine as articulated by the Supreme Court.").
dissenting) (contending that contract law standards apply to plea bargain agreements because they are products of bargained-for exchange
  • J Kozinski
472. 981 F.2d 1037, 1040, 1042 (9th Cir. 1992) (Kozinski, J., dissenting) (contending that contract law standards apply to plea bargain agreements because they are products of bargained-for exchange).
at 1040 (citing Frank H. Easterbrook, Plea Bargaining as Compromise
  • Id
Id. at 1040 (citing Frank H. Easterbrook, Plea Bargaining as Compromise, 101