EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, May 20, 2011

Article of Interest: “Waiving” Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation, by Jane Campbell Moriarty & Marisa Main

Similar to most state counterparts, Federal Rule of Evidence 410(4) states that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:...

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

So, when a defendant enters into plea discussions, any incriminatory statements that he makes during the plea bargaining process will be inadmissible against him at trial should a plea agreement not be reached, right? Wrong. Since the Supreme Court's 1995 opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), courts consistently have held that prosecutors can force defendants to waive the protections of Rule 410 (as well as other evidentiary and constitutional protections) to get to the plea bargaining table. Moreover, as noted in the excellent forthcoming article, “Waiving” Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation, "the law of waiver has expanded exponentially in the last few decades, necessitating a change in the current" ABA Standards for Prosecution and Defense Function. The article was co-authored by Jane Campbell Moriarty, a professor at The University of Akron School of Law (and soon to be the Carol Los Mansmann Chair at the Duquesne University School of Law), and Marisa Main, a Professor Moriarty's RA, who will soon by a federal judicial clerk.

Queen for (Just) a Day

In part one of their article, the authors start by noting the holding of Mezzanatto. In Mezzanatto, the prosecution forced the defendant to waive the protections of Rule 410 to the extent that if a plea bargain were not reached and the defendant testified at trial, the prosecution could impeach him with any inconsistent statements that the defendant made during plea negotiations. The Court deemed this waiver valid, finding that Rule 410 "expressly contemplate[s] a degree of party control that is consonant with the presumption of waivability." 

That said, Justices Stevens and Souter dissented, cautioning "that the inevitable result of the reasoning used by the majority would, in time, come to function as a waiver of trial itself." The authors note that this fear has largely come to fruition as they include an appendix revealing the rapid rise in the percentage of criminal cases resolved by guilty pleas ("In 2007, 2008, and 2009, the percentage of defendants pleading guilty was 95.8%, 96.3%, and 96.3%, respectively.") 

Combine this trend with the rise in the use of the "queen for a day" agreement approved in Mezzanatto, and you start to see a picture of defendants being railroaded into guilty pleas. The authors note that in the wake of Mezzanatto prosecutors have come to insist on these waiver before beginning the plea bargaining process, but it is not just the quantity of these waivers that have expanded. The Court in Mezzanatto merely approved of an "impeachment waiver." As noted, the waiver in Mezzanatto only allowed the prosecution to impeach the defendant with his statements during plea negotiations if he testified inconsistently at trial. If the defendant did not testify or testified consistently with his plea bargaining statements, those prior statements would remain inadmissible.

As the authors note, however, courts consistently have approved of "rebuttal waivers" in the wake of Mezzanatto, which allow a prosecutor to present a defendant's plea bargaining statements as long as the defendant presents any evidence, arguments, or testimony (by any witness) that contradicts those statements. Moreover, courts have begun to approve of case-in-chief waivers, under which the prosecution can introduce a defendant's plea bargaining statements at trial as part of its case-in-chief, even if the defendant plans to present no evidence or witnesses of his own.

Given the general recognition that defendants fare better during plea bargaining than at trial (the so-called trial penalty), it is easy to see why defendant continue to sign these waivers, and it is equally easy to see why defendants continue to accept plea bargains, given that the concessions that they made during plea bargaining can be aired out in open court should they proceed to trial (and given that they can't present evidence that they rejected a plea bargain as evidence of their consciousness of guilt). And while the prosecution can use a defendant's plea bargaining statements at trial pursuant to such waivers, as the authors note, pursuant to United States v. Ruiz, 536 U.S. 622 (2002), the prosecution is under no obligation to disclose to the defendant material impeachment evidence before reaching a plea agreement. Moreover, many courts have held that the prosecution does not even need to disclose to the defendant material substantive evidence before reaching such a bargain.

Between a Rock and a Hard Place

In Part II, the authors focus upon the dilemma faced by defense counsel (often a public defender) in representing the defendant during the plea bargaining process. As the authors note,

The defense dilemma is thus: The attorney has little time or ability to investigate or discover what evidence the prosecution has against his client, is entitled to little discovery, knows the client risks decades of prison time if she loses at trial (which, statistically, is overwhelmingly likely to happen), and yet must advise the client on the best strategy, often without a sound, fact-based foundation. The dilemma posed has both constitutional and ethical implications related to competence...

Without solid knowledge of the case the government has against the defendant, the defense attorney cannot know whether a plea offer would really benefit the defendant, whether she has grounds to bargain for a better plea offer, or whether she should simply go to trial. Moreover, requiring defendants to waive virtually all rights before even discussing a plea needs to be reconsidered. The current climate of plea bargaining is at odds with those ethical and constitutional requirements, adversely affecting the lives of defendants and the workings of the justice system as a whole.

New and Improved

Finally, in Part III, the authors focus upon the Proposed Changes to the ABA Standards for Prosecution and Defense Function and how several of them have the capacity to fundamentally change the plea bargaining process for the better. Here they are the proposed changes in  bullet-pointed form:

Prosecution Function

The Proposed Changes to the Prosecution Function:

•require specific proof of knowledge of guilt before accepting pleas;

•require full disclosure of exculpatory information before entering plea discussions;

•require admonitions against routine waivers of rights and the use of coercive tactics (such as unreasonably short deadlines).

•counsel against making false representations

•urge prosecutors to remember the importance of actual innocence in their handling of cases;

•command prosecutors not to engage in discussions with defendants without either counsel present or counsel’s approval to proceed; and

•indicate that prosecutors should not condition acceptance of pleas on waiver of all rights, particularly those that would cause a manifest injustice.

Defense Function

The Proposed Changes to the Defense Function:

•defense counsel is obligated:

•to obtain evidentiary discovery material;

•to create an investigative and defense strategy;

•and to take steps to protect the client’s interest, include preservation of evidence, seeking pretrial release, hiring investigators and experts, and so forth;

•in conducting plea bargaining, the Standards ask the defense attorney not to accept plea deals that contain waivers of constitutional rights (such as the right to appeal) and to challenge the inclusion of such a waiver even where the client is agreeable to the plea offer.


As the authors note, the real value of these Proposed Changes is that they "[t]hey provide a 'collective' view of appropriate behavior that should become the prevailing norm and provide individual attorneys with support for refusing to waive clients’ rights and enter plea agreements without a sufficient foundational knowledge to provide competent advice." I think that this is fundamentally right. The current plea bargaining model is like a business contract between parties with unequal bargaining power. And when the plea bargaining process is more about driving a hard bargain than the defendant actually acknowledging what he did wrong and the damage he caused, is it any surprise that we have high recidivism rates and low satisfaction with the criminal justice system? The Proposed Changes ask prosecutors to treat defendants with dignity, to focus on the possibility of defendants' actual innocence, and to make disclosures to defendants when they have evidence of their guilt. They ask for defense counsel to try to make cases for their clients rather than merely trying to determine what counteroffer to the prosecution's plea offer will lead to the best result. I asked Professor Moriarty what led her to write the article, and she responded:

Bruce Green at Fordham invited me to work on a roundtable presentation for the ABA prosecutorial and defense function standards (which are being revised) & to write an article for a symposium on the subject of waiver of rights related to the Proposed Standards.

I am distressed at how easy it is to waive virtually all rights and how low the standards are for knowing waiver; how willing courts are to permit case-in-chief waivers for the mere privilege of  discussing a plea (pre-conditional plea waivers);  how much the balance of power in criminal matters had shifted over the past 15 years away from the judiciary and toward federal prosecutors;  how the administration of criminal cases has become nearly trial-less; and how little evidence (both inculpatory & exculpatory) many prosecutors disclose.  Pleas are really just capitulating to the government's best offer.

In addition to the fundamentally unfair situation this places defendants in, it also puts  defense counsel in the unenviable position of giving advice often without sufficient knowledge or a guaranteed plea agreement.  To reject the prosecution's plea means possible decades of prison that could have been avoided.  No matter what, the defendant loses the benefit of truly competent representation.

I think the proposed standards are a helpful start in correcting some of the unfairness and imbalances that have developed.



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