Disclosure by the Defense

rule 11d

(d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere: (1) before the court accepts the plea, for any reason or no reason; or (2) after the court accepts the plea, but before it imposes sentence if: (A) the court rejects a plea agreement under 11(c)(5); or (B) the defendant can show a fair and just reason for requesting the withdrawal. (e) Finality of a Guilty or Nolo Contendere Plea. After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack. (f) Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related Statements. The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410. (g) Recording the Proceedings. The proceedings during which the defendant enters a plea must be recorded by a court reporter or by a suitable recording device. If there is a guilty plea or a nolo contendere plea, the record must include the inquiries and advice to the defendant required under Rule 11(b) and (c). (h) Harmless Error. A variance from the requirements of this rule is harmless error if it does not affect substantial rights.

rule 11 pleas

(1) In General. A defendant may plead not guilty, guilty, or (with the court's consent) nolo contendere. (2) Conditional Plea. With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea. (3) Nolo Contendere Plea. Before accepting a plea of nolo contendere, the court must consider the parties' views and the public interest in the effective administration of justice. (4) Failure to Enter a Plea. If a defendant refuses to enter a plea or if a defendant organization fails to appear, the court must enter a plea of not guilty. (b) Considering and Accepting a Guilty or Nolo Contendere Plea. (1) Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following: (A) the government's right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath; (B) the right to plead not guilty, or having already so pleaded, to persist in that plea; (C) the right to a jury trial; (D) the right to be represented by counsel—and if necessary have the court appoint counsel—at trial and at every other stage of the proceeding; (E) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses; (F) the defendant's waiver of these trial rights if the court accepts a plea of guilty or nolo contendere; (G) the nature of each charge to which the defendant is pleading; (H) any maximum possible penalty, including imprisonment, fine, and term of supervised release; (I) any mandatory minimum penalty; (J) any applicable forfeiture; (K) the court's authority to order restitution; (L) the court's obligation to impose a special assessment; (M) in determining a sentence, the court's obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. §3553(a); (N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence; and (O) that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.

rule 11 pt 2

(2) Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must 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 in a plea agreement). (3) Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea. (c) Plea Agreement Procedure. (1) In General. An attorney for the government and the defendant's attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will: (A) not bring, or will move to dismiss, other charges; (B) recommend, or agree not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement). (2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera. (3) Judicial Consideration of a Plea Agreement. (A) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report. (B) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request. (4) Accepting a Plea Agreement. If the court accepts the plea agreement, it must inform the defendant that to the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the agreed disposition will be included in the judgment. (5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specified in Rule 11(c)(1)(A) or (C), the court must do the following on the record and in open court (or, for good cause, in camera): (A) inform the parties that the court rejects the plea agreement; (B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and (C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.

Brady v maryland overview

1. affirmative duty to disclose exculpatory evidence (but originally required request) 2. extends to impeachment material (giglio) -further applied in badgely- no distinction btw impeachment evidence and otherwise exculpatory evidence under brady 3. materiality standard- whether there is a reasonable probability that had the info been disclosed to defense, result of proceeding would have been different -extension of the rule that a prosecutor cannot mislead

class notes

Alito dissent Blackledge and menna diverge from prior precedents, but neither case provided a clear or coherent explanation for the departure •The holding in class is clear- an unconditional guilty plea does not waive the right to challenge the constitutionality of the statute to which the defendant has pled guilty •cannot challenge a suppression claim of a post-arrest statement after a guilty plea (richardson) •Menna v NY- a plea of guilty to a charge does not waive a claim that-judged on its face-the charge is one which the sate may not constitutionaly prosecute (I.e. challenging the second prosecution of the same crime based on double jeopardy grounds) •Blackledge v perry- claim of vindictive prosecution also survives a guilty plea •Open plea- guilty pleas without an agreement with the gov (don't have to contract with the gov in order to plead guilty.) then you just take the sentence the judge gives you

alford notes

Although an alford plea involves a defendant who protested his innocence, he is in fact pleading guilty. Alford pleas are not the same thing as a no-contest plea guilty pleas are consensual transactions; a plea hearing is not an adversarial process and neither the government nor the defense has any interest in raising objections while the proceeding is taking place -as a result, guilty pleas are often very difficult to challenge on a direct appeal; in the absence of a contemporaneous objections, rule 11 violations may be waived entirely on appeal, or at best subject to plain error review

Boykin v alabama

Boykin v alabama- the Court held that because the guilty plea is a waiver of a great many constitutional rights, including the right to trial, the right against self-incrimination, and the right to confront his accusers, there must be an affirmative showing in the record that the defendant entered the plea knowingly and voluntarily -this resulted in rule 11 Now setting for the process by which the judge ensures that the defendant understands the scope and impact of his decision to acknowledge his guilt -the overlapping requirements of the Constitution and the rule now provide that a guilty plea (1) must be made knowingly, (2) must be made voluntarily, and (3) as an adequate factual basis to support it

Brady developing issues

Case law is running in the direction of allowing inadmissible material to be included in brady claims Timing of disclosure- pre-trial disclosure is required (so if you wait until trial, its too late) -There are circuit splits on whether this applies to impeachment testimony •What constitutes disclosure: can a prosecutor just throw a pile of documents at a defendant and say its in there somewhere? -some suggestion that the answer is yes if defendant has the power to search. Some cases say the prosecutor doesn't have to draw the defendants attention to where the material is. -Some Cases say prosecutor doesn't have to say anything if they know defendant already knows of the evidence -Some cases say prosecutor can say "you may want to talk to witness X" without specficity of the actual evidence

Alford cont

Holding: in view of the strong basis for the plea demonstrated by the state and alfords clearly express desire to enter it despite his professed belief in his innocence, we hold that the trial judge did not commit constitutional error in accepting it Brennan dissent I believe that at the very least such a denial of guilt is also a relevant factor in determining whether the plea was voluntary and intelligently made Alford plea: 1. Full adjudication of guilt 2. Gov't provides factual predicate 3. Gov't views needn't be considered Nolo contendre pleas 1. Not adjudication of guilt 2. No factual predicate 3. Must consider gov views

rule 16 cont

D. defendants prior record. Upon a defendant's request, the government must furnish the defendant with a copy of the defendants prior criminal record that is within the government's possession, custody, or control if the attorney for the government knows or through due diligence could know that the record exists E. documents and objects. Upon a defendant's request, the government must permit the defendant to inspect into copy or photograph books, papers, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and; I. the item is material to preparing the defense; II. the government intends to use the item in its case in Chief at trial; or III. the item was obtained or belongs to the defendant G. expert witness. At the defendants request, the government must give to the defendant a written summary of any expert testimony that teh government intends to use during its case in chief at trial. The summary provided under this sub paragraph must describe that witness's opinions, the bases and reasons for those onions, and the witness's qualifications 2. Information not subject to disclosure. Except as a rule 16a1 provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or Prosecuting the case. Nor does the rule authorized the discovery or inspection of statements made by prospective government Witnesses except as provided in 18 USD at 3500

Kyles v whitley

Facts: a man identifying himself as James Joseph called the police and reported that on the day of the murder he had bought a red Thunderbird from a friend named Curtis, whom he later identified as petitioner, Curtis Kyles. He said that he had subsequently read about the murder in the newspapers and feared that the car he purchased was the victims. He agreed to meet with the police. The informant now said his name was Joseph Banks and that he was called beanie. Kyle's was indicted for first-degree murder. Before trial, his counsel filed a lengthy motion for Disclosure by the state of any exculpatory or impeachment evidence. The prosecution responded that there was no exculpatory evidence of any nature despite the government's knowledge of the following evidentiary items: the six contemporaneous eyewitness statements taken by the police following the murder, records of beanies and a social call to the police, Etc notwithstanding the many inconsistencies and variations among beanies statements, neither striders notes nor any of the other notes and transcripts were given to the defense Beanie was not called to testify by either side Rule: the prosecution's affirmative duty to disclose evidence favorable to a defendant is most prominently associated with the Court's decision in Brady. Brady 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 -in US v bagely, the court disavowed any difference between exculpatory and impeachment evidence for Brady purposes and it held that regardless of request, favorable evidence is material and constitutional error results from its depression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the results of the preceding would have been different -> not a good faith by prosecutor standard - although the Constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, the showing of materiality it does not require a demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal ( weather based on the presence of Reasonable Doubt or acceptance of an explanation for the crime that does not inculpate the defendant) Bagely's touchdown of materiality is a reasonable probability of a different result and the adjectives is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable probability of a different result is accordingly shown when the government's evidentiary suppression undermines confidence in the outcome of the trial - the second aspect of bagely Materiality bearing emphasis here is that it is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict - third, we note that once the reviewing Court applying bagely has found constitutional error that there is no need for further harmless error review. Assuming that a harmless error enquiry were to apply, a badely error could not be treated as harmless, since a reasonable probability that, had the evidence been disclosed to the defense, the result of the preceding would have been different, necessarily entails the conclusion that the suppression must have had substantial and injurious effect or influence in determining the jury's verdict - the fourth and final aspect of bagely materiality to be stressed here is its definition in terms of suppressed evidence considered collectively, not item by item. The Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense - showing that the prosecution knew of an item a favorable evidence unknown to the defense does not amount to a Brady violation without more. The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting its obligation, the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material Level of importance is inescapable - the question is not whether this day would have had a case to go to the jury if it had to close the favorable evidence, but whether we can be confident that the jury's verdict would have been the same

North carolina v alford

Facts: alford Was indicted for first-degree murder. The prosecutor agreed to accept a plea of guilty to a charge of second-degree murder and defendant plead guilty to A reduced charge. Defendant took the stand and testified that he had not committed the murder but that he was pleading guilty because he faced the threat of the death penalty if he did not do so. In response to the questions of his Council, he acknowledged that his Council had informed him of the difference between second and first degree murder and of his rights in case he chose to go to trial. The trial court then asked him if, in light of his denial of Guild, he still desired to plead guilty to second-degree murder and he said yes sir. I plead guilty from the circumstances that my attorney told me. Defendants at post-conviction relief and State Court. Among the claims raised was the claim that his plea of guilty was invalid because it was the product of fear and coercion Rule: bRADY v US- a plea of guilty which would not have been entered except for the defendant's desire to avoid a possible death penalty and to limit the maximum penalty to life imprisonment for a term of years was not for that reason compelled within the meaning of the Fifth Amendment. The standard was and remains whether the plea represents a voluntary and intelligent Choice among the alternative courses of action open to the defendant that he would not have pled except for the opportunity to limit the possible penalty does not necessarily demonstrate that The Plea of guilty was not the product of a free and rational Choice, especially where the defendant was represented by competent counsel Whose advice was that the police it would be to the defendant's advantage - ordinarily, a judgment of conviction resting on a plea of guilty as justified by the defendant admission that he committed the crime charged against him and his consent that judgment be enter without a trial of any kind. The police usually subsumes both elements, and justifiably so, even though there is no separate, Express admission by the defendant that he committed the particular act claimed to constitute the crime charged in the indictment - implicit in the no-contest cases is a recognition that the constitution does not bar and position of a prison sentence upon and accused who is unwilling expressly to admit his guilt but who, face with G Alternatives, is willing to waive his trial and accept the sentence - well most pleas of guilty consist of both a waiver of trial and an Express admission of guilt, the latter element is not a constitutional requisite to the imposition of a criminal penalty - nor can we proceed any material difference between a plea that refuses to admit Commission of the criminal act and a plea containing a protestations of Innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt when his plea is viewed in light of the evidence against him, which substantially negated his claim of innocence and which further provided the means by which the judge could test whether the plea was being intelligently entered, it's literally cannot be seriously questioned - the states and their wisdom may take this course by Statute or otherwise and may prohibit the practices of accepting pleas To lesser-included offenses under any circumstances. But this is not the Mandate of the fourteenth amendment in the Bill of Rights

Taylor v illinois

Facts: as a sanction for failing to identify a defense witness in response to a pre-trial Discovery request, an Illinois trial judge refused to allow the undisclosed witness to testify. defense counsel made an oral motion to amend his answer to Discovery to include two more witnesses, Alfred wormly and pam berkhalter. in support of the motion, Council representative that he had just been informed about them and that they had probably seen the entire incident. In response to the courts inquiry about defendant's failure to tell him about the two witnesses earlier, Council acknowledged that defendant had done so but then represented that he had been unable to locate wormly. Council was permitted to make an offer of proof in the form of wormlys testimony. His testimony rather dramatically contradicted defense counsel's representation to the trial court. After hearing and Testify, the trial judge concluded that the appropriate things end for the discovery violation was to exclude the testimony. Petitioner contended that the Sixth Amendment Bars the Court from ever ordering the conclusion of Defense evidence as a suspension for violating a discovery rule Rule: criminal defendants have the right to the government assistance and compelling the attendance of favorable Witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt the right to offer testimony is this grounded in the Sixth Amendment - the accused does not have an unfettered right to offer testimony that is incompetent, privilege, or otherwise inadmissible under standard Rules of Evidence

US v hodge

Facts: devin hodge plead guilty to murdering the owner of a jewelry store. Devon's brother, Irvine, pled guilty to the same crime as part of a package deal. devin argued on appeal that the government breached its plea agreement and that the district court conducted a deficient plea colloquy in part because it was unaware that his plea with link to his brothers. the government sent Devin's attorney a draft plea agreement and the body of the cover letter stated that the plea offer from the government is a lock plea. that is, each of your clients must accept a plea as a condition of the government acceptance of the plea the final paragraph of the written plea agreement provided that the parties agree that no other promises have been made in connection with this matter and that this plea agreement constitutes the entire agreement. The agreement did not mention that Devon's plea was locked or otherwise conditioned upon Irvine's identical plea Rule: US v vonn- How is that a defendant who fails to object to rule 11 air must carry the burden of showing on appeal that the error was playing, prejudicial, and disreputable to the judicial system. In other words, the defendant must show that (1) an error was committed; (2) the era was playing, that is clear and obvious; and (3) the error affected the defendants substantial rates. When those elements are satisfied, and appellate court and its discretion May order a correction if they are seriously affects the fairness, Integrity, or public reputation of judicial proceedings - package plea Bargains exist where the government accepts a defendant guilty plea on the condition that his co-defendants also plead guilty. The incentive to join such Arrangement as straightforward; the government offers defendants a volume discount- A better deal than each could have gotten separately (1) package plea deals are required to be disclosed to the court and (2) color quiz with package please participants must be conducted with special care - when a defendant's plea rests on a promise by the government that another defendant will benefit, that promise is a material term of the agreement. And full disclosure to The District Court of the material terms of plea agreements is necessary to ensure that the rule 11 colloquy is the row and searching as to defend in knowing, intelligent, and voluntary waiver of the right, among others, to a jury trial. We therefore hold that the parties must notify the district court that a package deal exist and state to the court on the record the specific terms of that deal - once a court has been told of a package deal, Special Care should be exercised during the rule 11 clearly colloquy to ensure that the defendant is pleading voluntarily. The nature of the inquiry required by rule 11 must necessarily vary from case to case - what then in general terms is Special Care? At the start hold, a district court notified of a package plea deal bargain should question Council closely to ensure that the precise terms of the package plea deal are on the record. Once it is clear exactly how a defendant's plea benefits his Confederates, it may be helpful to ask who first proposed the package deal, How extensively defense counsel was involved in developing the deal and what benefit the defendant expect to gain from the deal when asking whether a plea is a product of force, threats, or inducements and the like, a district court should take care not to ask only whether the prosecutor Force, threatened, or corerced the defendant, but whether anyone did so. Having so inquired, the court should be particularly attuned to even mild expression of reluctance by a defendant. Such Expressions always should trigger a more searching inquiry - the overarching rule is that a district court considering a package deal should be particularly attentive to a defendant's responses to voluntariness questions throughout the week all Aquia. Package deal plea Bargains are not inherently coercive

Williams v florida

Facts: petitioner filed a motion for protective order seeking to be excused from the requirements of rule 1.2 of the Florida rules of criminal procedure. That role requires the defendant, Unwritten demand of the prosecuting attorney, to give notice in advance of a trial is the defendant intends to claim an alibi and to furnish the prosecuting attorney with information as to the place where he claims to have been and with the names and addresses of The Alibi witness says he intends to use. State, in return, discloses its rebuttal witnesses. The sanction to not disclosing is you cant bring the witness. Petitioner objected to the further disclosure requirements on the ground that the rule compels the defendant in a criminal case to be a witness against himself in violation of his Fifth and Fourteenth Amendment right. The motion was denied reasoning: Florida law provides for Liberal discovery by the defendant against the state and the notice of Alibi rule is itself carefully hedged with reciprocal duties requiring State disclosure to the defendant. Given the ease with which an alibi can be fabricated, the state's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate - however testimonial or incriminating The Alibi defense proved to be, it cannot be considered compelled within the meaning of the fifth and fourteenth amendments - nothing in such a rule requires the defendant to rely on an alibi or prevents him from abandoning the defense, these matters are left to his unfettered choice - The notice of Alibi rule by itself in no way affected petitioners crucial decision to call Alibi Witnesses or added to the legitimate pressure is leading to that course of action. At most, the rule only compelled petitioner to accelerate th etiming of his disclosure, forcing him to divulge at an earlier date. nothing in the Fifth Amendment privilege and tells a defendant as a matter of constitutional right to await the end of the state's case before announcing the nature of his defense, any more than it entitles him to await the jury's verdict on the state's case in Chief before deciding whether or not to take the stand himself - if utilizing a continuance is permissible under the fifth and fourteenth amendments then surely the same result may be accomplished through pre-trial Discovery as it was here avoiding the necessity of a disrupted trial

Ricketts v adamson

Facts: responded was arrested and charged with first degree murder in connection with bolles death. Responded and the state prosecutor reached an agreement whereby respondent agreed to plea guilty to a charge of second degree murder and to testify against two other individuals. The agreement provided that should the defendant refuse to testify or should h at any time testify untruthfully then this entire agreement is null and void and the original charge will b automatically reinstated. Respondent testified as obligated under the agreement, and both dunlap and robison were convicted of th first degree murder of bolles. The court sentnced respondent. Th arizona supreme court revrsed the convictions of dunlap and robison. The state sought respondents cooperation and testimony in preparation for the retrial of dunlap and robison. Respondent believed his oblgiation to provide testimony under the agreement had terminated when he was sentenced. The state thn informed respondents atty that it deemed respondent to be in breach of the plea agreement. The state filed a new info charging respondent with the first degree murder . Respondent was then convicted of first degree murder and sntenced to death Holding: respondents breach of the plea arrangement to which the parties had agreed removed the double jeopardy bar to prosecution of respondent on the first degree murder charge -plea agreement doesn't need to specifically law out all of the rights the defendant waives, including waiving double jeopardy Reasoning: the agreement provides that if respondent refused to testify, this entire agreement is null and void and the original charge will be automatically reinstated -the state did not force the breach; respondent close, perhaps for strategic reasons or as a gamble, to advance an interpretation of the agreement that proved erroneous. And there is no indication that respondent did not fully understand the potential seriousness of the position he adopted Respondents counsel advised the prosecutor that respondent is fully aware of th efact that your office may feel that he has not completed his obligations under the plea agreement and further, that your office may attempt to withdraw the plea agreement from him, and that he may be prosecuted for the killing of donald bolles on a first degree murder charge

hodge cont

Holding: we hold that the government breached its plea agreement and we will vacate Devin sentence and remand for resentencing or withdrawal of his plea. We further hold that the district court did not plainly err and conducting devan's key colloquy -You can glue that the district court did not complete plain error during the rule 11 colloquy - we therefore right to provide guidance to The District Court should a new plea colloquy be necessary on remand Reasoning: the government's cover letter to the final draft plea agreement states that the police were locked. As we explain below, other courts of appeals require disclosure of such arrangements to The District Court, which must exercise Special Care at the rule 11 colloquy to ensure that each participant please voluntarily. Until today however that was not the law in the circuit. In addition, even if the district court have been informed that Devon's Polly with package, we cannot say that failure to conduct Devon's colloquy with special care would have been clear and obvious error -courts concern with wired pleas- people will plead guilty to protect a love one even if theyre innocent, or one defendant may coerce the other one to plead

US v diaz-jiminez

Holding: Defendant did not forfeit challenge the government's violation of plea agreement and prosecutors mistaken initial recommendation of a sentence at top of the sentencing guidelines range constituted a serious breach of plea agreement - There was a serious breach of the plea agreement and the defendant is entitled to be resentenced by a different judge Facts: the defendant, a Mexican citizen, plead guilty to having been present in the United States illegally. He had re-entered the United States on four previous occasions after his conviction. In exchange for his pleading guilty to the immigration offense the government agreed to recommend a sentence at the bottom of the guidelines range, which was 18 to 24 months. But at the sentencing hearing the prosecutor mistakenly, though apparently in good faith, initially recommended that the defendant be sentenced at the top of the range. defense Council immediately objected on the basis of the government's promise in the plea agreement. The prosecutor responded by saying it's not my fault. I got the morning wrong in the afternoon wrong and my recommendation was wrong. And we asked the court to impose that low end of the guideline range the judge sentenced the defendant to 21 months in prison

kyles cont

Holding: fairness cannot be stretched to the point of calling this a fair trial. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion reasoning: such disclosure will serve to Justified trust in the prosecutor as the representative of a sovereignty lose interest in a criminal prosecution is not that it show when case, but that Justice shall be done - in this case, disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable - the essence of the state's case was the testimony of eyewitnesses who identified Kyle's as the murderer. Disclosure of their statements would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense - a jury would reasonably have been troubled by the adjustments to Smallwood's original story by the time of the second trial - next to be considered as the prosecutors list of the cars in the parking lot at Mid evening after the murder. While its suppression does not ring with the failure to disclose the other evidence discussed here, it would have had some value as exculpation and impeachment, and it counts accordingly in determining whether bagleys standard of materiality is satisfied - it is significant however that the physical evidence remaining unscathed would hardly have amounted to overwhelming proof that Kyle's was the murderer Scalia dissent even if the undisclosed evidence would have allowed the defense to thoroughly impeach beanie and to suggest the above possibilities, the jury could well have believed all of those things and yet have condemned petitioner because it could not believe that all four of the eyewitnesses were similarly mistaken I think it is hyperbole to say that the statement would have substantially reduced or destroyed the value of Williams testimony the relevant question in the materiality inquiry is not how many points the defense could have scored off the prosecution witnesses, but whether it is reasonably probable that the New Evidence would have caused the jury to accept the basic thesis that all four Witnesses were mistaken. I think it plainly is not the effect that the Brady materials would have had in chipping away at the edges of the state's case can only be called immaterial

Milton heumann, plea bargaining: prosecutors, judges, and defense attorneys

If the case is serious, the prosecutor and State's Attorney are likely to be looking for time. The serious case cannot be quickly disposed of by a no-time alternative these are cases in which we would expect more involved and lengthy plea bargaining negotiations whether the case is viewed as serious or non-serious depends on factors other than formal charges the defendant faces. For example, these non-formal considerations might include the degree of harm done the victim, the amount of violence employed by the defendant, the defendant's prior record, the characteristics of the victim and the defendant, the defendant's motive; all are somewhat independent of the formal charge and yet all weigh heavily in the prosecutors Judgment of the seriousness of the case The major point of heumann's book is that the large majority of defense attorneys, prosecutors, and judges come to their skeptical plea bargaining but overtime come to endorse the practice

Class v US

Issue: does a guilty plea borrow a criminal defendant from bleeder appealing his conviction on the ground that the statute of conviction violates the Constitution Holding: a guilty plea by itself does not bar that appeal - In Sum, the claims at issue here do not fall within any of the categories of claims that Defendant's plea agreement forbids him to raise on Direct appeal. They challenged the government's power to criminalize defendants admitted conduct. They thereby call into question the government's power to constitutionally prosecute him. A guilty plea does not borrow a direct appeal in these circumstances - we hold that class May pursue his constitutional claims on Direct appeal Facts: Federal grand jury indicted petitioner for possessing firearms in his locks Jeep, which was parked in a lot on the grounds of the US Capitol in violation of 40 u.s.c. 5104. Class asked to dismiss the indictment. He alleged that the statute violates the Second Amendment and also raised a due process claim. Class plead guilty to possession of a firearm on US Capitol grounds. The agreement said nothing about the right to raise on Direct appeal a claim that the statute of conviction was unconstitutional. Class appealed his conviction and repeated his constitutional claims. The court of appeals held that class could not raise his constitutional claims because he waived them by pleading guilty

Newton v rumery

Issue: weather Accord properly May enforce an agreement in which a criminal defendant releases his right to file and action under 42 USC 1983 in return for a prosecutor's dismissal of pending criminal charges Facts: a grand jury indicted David champi for aggravated felonious sexual assault. Rumery, a friend of Champy's, read about the charges in a local newspaper. Seeking information, he telephoned mary deary, who is acquainted with both rumery and champy. coincidentally, Mary had been the victim of the assault in question. She called the chief of police and told him that rumery was trying to force her to drop the charges against champie. Mary told the police that rumery add threatened that if mary went forward on the champion case, she would end up like two women who recently had been murdered in Massachusetts. The defense attorney and the prosecutor reach an agreement under which the prosecutor would dismiss the charges against rumery if he would agree not to sue the town, its officials, or marry for any harm caused by the arrest. Rumery Filed an action under 1983 arguing that the agreement was unenforceable because it violated public policy Rule: the promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement - although agree that in some cases release-dismissal Agreements May infringe important interests of the criminal defendant and of society as a whole, we do not believe that the mere possibility of harm Steve's interest calls for a per se rule

US v ruiz

Issue: what are the 5th and 6th amendment require Federal prosecutors, before entering into a binding plea agreement with a Criminal defendant, to disclose impeachment information relating to any informants or other Witnesses Holding: we hold that the constitution does not require that disclosure - the Constitution does not require the government to disclose material impeachment evidence prior to entering a plea agreement with a Criminal defendant - we note that the fast track plea agreement requires a defendant to waive her right to receive information the government has regarding any affirmative defense you raises at trial. We do not believe the Constitution here requires provision of this information to the defendant prior to plea bargaining Facts: after immigration agents found 30 kilograms of marijuana in the defendant's luggage, Federal prosecutors offered her what is known as a fast-track plea bargain. The prosecutor is proposed plea bargain contains that any known information establishing the factual innocence of the defendant has been turned over to the defendant, and it acknowledges the government's continuing duty to provide such information. At the same time it requires that defendant wave the right to receive impeachment information relating to any informants or other witnesses as well as the right to receive information supporting any affirmative defense the defendant raises if the case goes to trial - the Constitutional question concerns a Federal Criminal defendants waiver of the right to receive from prosecutors exculpatory impeachment material- a right that the constitution provides as part of its basic Fair trial guarantee

Taylor 3

Issue: whether that refusal violated the petitioners constitutional right to obtain the testimony of favorable Witnesses Holding: we hold that such a sanction is not absolutely prohibited by the compulsory process clause of the Fifth Amendment and find no constitutional error on the specific facts of this case - we reject petitioners argument that a preclusion sanction is never appropriate no matter how serious the defendants Discovery violation May be -other options other than preclusion of the discovery: tell jury this person wasn't disclosed, sanction the lawyer -benefit of preclusion- prevents testimony/evidence brought under suspicious circumstances; stakes are high bc state cannot retry a defendant Brennan dissent the court in Washington v Texas concluded that arbitrary rules that prevent whole categories of Defense Witnesses from testifying on the basis of a priori categories that presume them Unworthy of belief are unconstitutional witness preclusion does punishes Discovery violations in a way that is both disproportionate ( it might result in a defendant charged with a capital offense being convicted and receiving a death sentence he would not have received but for the discovery violation) and arbitrary we have not previously suggested that a client can be punished for an attorney's misconduct The majority and Taylor suggests that regardless whether Prejudice to the prosecution would have been avoided, the willful misconduct in the case Justified precluding the testimony

Bordenkircher v hayes

Issue: whether the due process clause of the 14th Amendment is violated when a state prosecutor carries out a threat made during see negotiations to reindict the accused none more serious charges if he does not leave guilty to the offense with which he was originally charged Facts: Hayes was indicted by a grand jury on a charge of uttering a forged instrument in the amount of $88. Hayes, his retained counsel, in the prosecutor in the presence of the clerk of court to discuss a possible plea agreement. Prosecutor said that if hayes did not plead guilty and save the court from inconvenience and necessity of trial, he was returned to the grand jury to speak and indictment under the Kentucky habitual criminal act, which would subject Hayes to a mandatory sentence of life imprisonment by reason of his two prior felony convictions. He's chose not to plead guilty and the prosecutor did obtain an indictment charging him under the habitual criminal act as required by the habitual offender statute, he was sentenced to a life term in the penitentiary. Reasoning: Well the prosecutor did not actually obtain the recidivist indictment until after the Polly conferences had ended, its intention to do so with clearly expressed at the outset of The Plea negotiations. He's with us fully informed of the true terms of the offer when he made his decision to plead not guilty this is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendants insistence on pleading not guilty - give and take a negotiation, and plea bargaining between the prosecution and defense, which arguably possessed relatively equal bargaining power - to hold that the prosecutors desire to induce a guilty plea is an unjustifiable standard, which leg race or religion, play no part in his charging decision, which contradicts the very premise is that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would dry the practice of clear bargaining back into the Shadows from which it has so recently emerged

Santobello v new york

Issue: whether the states failyre to keep a commitment concerning the sentence recommendation on a guilty plea required a new trial Facts: NY indicted petitioner on two felony counts, promoting gambling in the first degree, and possession of gambling records in the first degree. District atty agreed to permit petitioner to plead guilty to a lesser included offense, possession of gambling records in the second degree, conviction of which would carry a max prison sentence of one year. The prosecutor agreed to make no recommendation as to the sentence. Petitioner accordingly withdrew his plea of not guilty and entered a plea of guilty to the lesser charge. The court accepted the plea and set a date for sentencing. Petitioners new counsel moved immediately to withdraw the guilty plea. Petitioner alleged that he did not know at the time of his plea that crucial evidence against him had been obtained as a result of an illegal search Another prosecutor had replaced the prosecutor who had replaced the prosecutor who had negotiated the plea. The new prosecutor recommended the max one year sentence. Defense counsel immediately objected on The ground that the state had promised petitioner before the plea was entered that there would be no sentence recommendation by the prosecutor. The second prosecutor, apparently ignorant of his colleagues commitment, argued that there was nothing in the record to support petitioners claim of a promise

newton 3

O'conner concurrence the defendants in a 1983 suit May establish that a particular release executed in exchange for the dismissal of criminal charges was voluntarily made, not the product of prosecutorial overreach in, and in the public interest. But they must prove that this is so; the court should not presume it as I fear portions of the plurality opinion May imply Stevens dissent the deliberate and rational character of respondents decision is not a sufficient reason for concluding that the agreement is enforceable the voluntary, deliberate, and inform character of a defendant's decision generally provides an acceptable basis for upholding the validity of a plea bargain. But it is inappropriate to assume that the same standard determines the validity of a quite different agreement to forego a civil remedy Violation of the defendant's constitutional rights in exchange for a complete abandonment of a criminal charge I am persuaded that the federal policy is reflected in the enactment and enforcement of 1983 mandate a strong presumption against the enforceability of such agreements

Bordenkircher v hayes notes

Powell dissent During the course of plea bargaining, the prosecutor offered respondent a sentence of five years in consideration of a guilty plea. I observe, at this point, that 5 years in prison for the offence charge are they could be characterized as a generous offer the prosecutor has conceded that his purpose was to discourage respondents assertion of his constitutional rights and the majority accept this characterization of events but here the prosecutor evidently made a reasonable, responsible judgment not to subject an individual to a mandatory life sentence when his only new offense has societal implications as limited as those accompanying the uttering of a single $88 for check •no review of differential between sentence with plea and sentence with trial •Suppose at a pre-trial hearing, the judge urges the defendant to enter into a settlement. The judge hints that it would be in the defendants best interest to do so. In such a case is the guilty plea voluntary? As a matter of federal law the answer is a clear no -Rule 11c1 says that a judge must not participate in plea discussions and chords take this prohibition quite seriously •notice that some states adopt different approach and permit judges to engage in discussions with the parties about a plea deal, although often a new judge will hear the trial at The Plea negotiations break down -note also that even if a federal judge violates rule 11c1 and participates in The Plea discussions, the violation will still be subject to harmless error analysis on appeal. US v davila

Newton v rumery cont

Reasoning: the risk, publicity, and expense of a criminal trial May intimidate a defendant, Even if he believes his defense is meritorious. But this possibility does not justify invalidating all such agreements -because rumery voluntarily waived his right to sue under 1983, the public interest opposing involuntary waiver of constitutional rights is no reason to hold this agreement invalid - we also believe the court of appeals Miss apprehended the range of public interest arguably affected by a release dismissal agreement. The availability of such agreements May threaten important public interest. They may tempt prosecutors to bring frivolous charges or to dismiss meritorious charges, to protect the interest of other officials. But a per se rule of invalidity failed to correct other relevant public interest and improperly assumes prosecutorial misconduct - even when the risk of ultimate liability is negligible, the burden of Defending such lawsuits is substantial. to the extent release dismissal agreements protect public officials from the burdens of Defending such unjust claims, they further this important public interest - in this case the prosecutor had an independent, legitimate reason to make this agreement directly related to his prosecutorial responsibilities. The agreement for closed both the civil and criminal trials concerning rumery, in which Mary would have been a key witness. She therefore was spared the public scrutiny and embarrassment she would have endured if she had had to testify and either of those cases Holding call in because release dismissal agreements May further legitimate prosecutorial and public interest, we were jacked the court of appeals holding that all such Agreements are invalid per se - we conclude that the District Court's decision to enforce the agreement was correct

US v diaz-jiminez 3

Reasoning: the second alternative, rescission of the plea agreement, is not adequate if it offended doesn't want to withdraw The Plea and gamble on negotiating a better agreement oh, and our defendant doesn't want to do that - if I was the prosecutor in this case had said after his mistake was pointed out i misremembered at the plea agreement. I agree on servilely with the recommendation in the plea agreement for an 18-month sentence. Such a corrective statement would be analogous to a contract parties during the breach before it did any harm to the other party - we are not suggesting Safe Harbor language or that a properly abject apology and retraction are a sure cure for any misrepresentation of the terms of a plea agreement. The route to get her might have indicated by his remarks before the mistake was discovered his strong commitment to a sentence at the high end of the guidelines. You didn't quite do that in this case. But neither did he make the kind of unequivocal attraction that we Illustrated. He began his acknowledgement of error by equivocating over whether and adequately adversive sentence , in light of the defendant's yo-yoing Across the u.s. Mexico border, was 18 months or greater Miriam this equivocation undermined his endorsement of the recommendation in the plea agreement - the prosecutor further undermined the plea agreement by saying I suppose a larger sentence could be appropriate but that, i.e. an 18-month sentence, is the least amount that is necessary to achieve the desired result. If 18 months is the least amount of prison time necessary to deter the defendant from returning illegally to the United States, and a longer sentence might therefore be appropriate, this is recommending to the judge, inconsistently with the plea agreement, that he sentenced the defendant to at least 18 months, and more of the judge wants since a longer sentence could be appropriate too Issue: whether the breach was material

class cont

Rule: US v broce- citing blackledge and menna , This court repeated that a guilty plea does not borrow a claim on a peel where on the face of the record the court had no power to enter the conviction or impose the sentence - guilty plea for goes not only a fair trial, but other accompanying constitutional guarantees. Well those simultaneously relinquished Rights include the privilege against compulsory self-incrimination, the the jury trial right, and the right to confront accusers, they do not include a waiver of the Privileges which exists beyond the confines of the trial - availability free also rendered irrelevant and thereby prevent the defendant from appealing the constitutionality of case related government conducts that takes place before the guilty plea is entered. Neither can a defendant later complained that the indicting grand jury was unconstitutionally selected - finally, a valid guilty plea relinquishes any claim that would contradict the admissions necessarily made upon entry of a voluntary plea of guilty - rule 11a2 - conditional plea. With the consent of the court and the government, a defendant may enter a conditional plea of guilty or no contest, reserving and writing the right to have an appellate court review and adverse determination of a specified pretrial motion. The defendant who prevails on appeal made then withdraw the plea Reasoning: defendant's constitutional claims here do not contradict the terms of the indictment or the written plea agreement. They're are consistent with his knowing, voluntary, and intelligent admission that he did with the indictment alleged - nor do his claims focus upon case related constitutional defects that occurred prior to the entry of the guilty plea. They could not, for example, have been cured through a new indictment by a properly selected grand jury - defendants statutory right directly to appeal his conviction cannot in any way be characterized as part of the trial - the Constitutional claim at issue here is consistent with defendant's admission that he engaged in the condo to alleged in the indictment -rule 11a2 does not say whether it sets forth the exclusive procedure for a defendant to preserve a constitutional claim following a guilty plea. At the same time, the drafters notes acknowledged that the Supreme Court has held that certain kinds of constitutional objections may be raised after a plea of guilty and the note state that rule 11a2 has no application to the kinds of constitutional objection that may be raised under that doctor in. We therefore hold that rule 11a2 did not resolve this case - District Court Judge stated that under the written plea agreement, class was giving up his right to appeal his conviction. we do not see why the District Court's statement should bar defendant's constitutional claims. It was made to ensure class understood the terms of any plea agreement provision waving the right to appeal or to the collateral we attack the sentence

US v diaz-jiminez cont

Rule: a plea agreement is a form of contract. A bridge is actionable and a minimum remedy is specific performance and resentencing by a different judge. Maximum is allowing the defendant to withdraw his plea; the court in santobello left a to the lower court to decide whether the circumstances of this case require only that there be specific performance of the agreement on The Plea, and which case petitioner should be resent his buy a different judge, or weather in the view of the lower court, the circumstances require granting the relief sought by the petitioner, i.e. the opportunity to withdraw his plea of guilty - the government's recommendation for leonetti is an important part of the consideration for a defendant entering a plea of guilty. But most courts, including our own, have not taken the extreme position that any violation of a promise to recommend a lighter sentence than might be expected automatically requires reversal- that it can never be deemed minor or curable -santobello didn't say that the doctrine of harmless error is inapplicable to breach of a plea agreement - the doctrine of harmless error is generally held in applicable only to fundamental procedural errors, such as refusing to allow a criminal defendant to be represented by a lawyer Santobello did hold that automatic reversal is warranted when an objection to the government's breeds of a plea agreement has been preserved, but that holding rested not upon the premise that we reach errors are somehow not susceptible to review for harmlessness, but rather upon a policy interest in establishing the trust between defendants and prosecutors that is necessary to sustain plea bargaining- any Central and highly desirable part of the criminal process. In neither santobello nor pucket did the court say that the maintenance of this trust excludes a concept of a material breach - subsequent actions by the prosecution can justify an inference that the error was indeed harmless -there is no constitutional right for defendant to choose a remedy for a plea breach

williams cont

Rule: it wasn't his own testimony that was being compelled, so it didn't violate the fifth amendment. also, the symmetry of the gov having to hand over its rebuttal witnesses ->truth enhancement rule holding: we conclude that the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his Alibi Witness Black dissent the core of the majority's decision is an assumption that compelling a defendant to give notice of an alibi witness before a trial is no different from requiring a defendant, after the state has produced evidence against him at trial, to plead an alibi before the jury retires to consider the case that statement is plainly and simply wrong as a matter of fact in law before a trial the defendant knows only what the states case might be a criminal defendant cannot be required to give evidence, testimony, or any other assistance to the state to 8 it and convicting him of a crime. The Florida notice of Alibi rule in my opinion is a patentt violation of that constitutional provision

Santobello cont

Rule: rule 11, governing pleas in federal courts, now makes clear that the sentencing judge must develop on the record the factual basis for the plea, as, for example, by having the accused describd the conduct that gave rise to the charge. The plea must be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known. A court may reject a plea in exervise of a sound judicial discretion -when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled Reasoning: the staff lawyers in a prosecutors office have the burden of letting the left hand known what the right hand is doing or had done. That the breach of agreement was inadvertant does not lessen its impact Holding: we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration Douglas concurrence Where the plea bargain is not kept by the prosecutor, the sentence must be vacated and the state court will decide in light of the circumstances of each case whether due process requires (a) that there be specific performance of the plea bargain or (b) that the defendant be given the option to go to trial on the original charges Marshall concurrence and dissent I agree with majority but conclude that petitioner must be permitted to withdraw his guiltu plea

ruiz cont

Rule: when a defendant pleads guilty, they forgo not only a fair trial but also other accompanying and constitutional guarantees. The Constitution and said, among other things, that the defendant entered a guilty plea that is voluntary and that the defendant Make related waivers knowingly, intelligently, and with sufficient awareness of the relevant circumstances and likely consequences - the law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances- even though the defendant may not know the specific detailed consequences of invoking it - the Constitution, in respect to a defendant's awareness of relevant circumstances, does not require a complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor reasoning: the degree of help that impeachment information can provide will depend upon the defendant's own independent knowledge of the prosecution's potential case- a matter that the constitution does not require prosecutors to disclose - and in any case, as the proposed plea agreement at issue here specified, the government will provide any information establishing the factual and a sense of the defendant regardless. The fact that, along with other guilty plea safeguards, diminishes the force of the defendants concern that in the absence of impeachment information, innocent individuals accused of crimes will plead guilty - at the same time, a constitutional obligation to provide impeachment information during plea bargaining, prior to entry of a guilty plea, could seriously interfere with the government's interest in securing those guilty pleas that are factually Justified, Desire by defendants, and help to secure the efficient administration of justice - the 9th circuits requirement could require the government to devote substantially more resources to trial preparation prior to plea bargaining, thereby depriving the plea bargaining process of its main resource saving advantages. Or I could leave the government instead to abandon its heavy Reliance upon plea-bargaining in a vast number of federal criminal cases - the need for this information is more closely related to the fairness of a trial then to the voluntariness of the police Thomas concurrence the court suggest that the Constitutional analysis turns in some part on the degree of help such information would provide to the defendant at the police stage, a distinction that is neither necessary nor Accurate

rule 16 notes

Sanctions for failure to comply with rule 16- courts will look to the extent ot which defense was impaired . So it depends -usually, sanction is continuance •Notice that rule 16 does not require the prosecution to disclose before trial any prior statements by nonexpert government witnesses on the subject matter of the testimony they will offer •Both federal rule of crim pro 26.2 and the jencks act 18 USC 3500 provide federal defendants the right to inspect certain witness statements, but only following the testimony of a government witness statements, but only following the testimony of a government witness on direct exam (the law specifically provides that befoe this point, no statement in the possession of the US which was made by a gov witness or prospective gov witness She'll be the subject of subpoena, Discovery, or inspection -the law defines statement to me in those decorations relating to the subject matter of the witness's testimony and constituting: (1) a written statement made by the witness and signed or otherwise adopted or approved by him; (2) a recording or transcription of an oral statement provided that it is substantially verbatim and was recorded contemporaneously; and (3) any statement made to a grand jury

Disclosure by the government

Sixth amendment- in all criminal prosecutions, the accused shall enjoy the right to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; and to have compulsory process for obtaining witnesses in his favor Things where defendant can learn about the gov's case without it being formally discovery: 1. Indictment 2. Bill of particulars (rule 7f) -compels gov to give details about the case -prevents gov changing their theory last min before trial, bc they've already committed to it via bill of particulars 3. Motion response -requires gov to disclose more facts 4. Bail hearings Prosecutors discovery obligations -Rule 16a requirements are significantly narrower than those found in many of the states

George fisher, plea bargaining Triumph

The gradual increase in the number of defendants who chose child during the first part of the century it therefore May mean that more and more defendants had counsel then, in the third quarter of the century, a sudden assault on the power of defendants to take their cases to trial may have reversed this course and helps to speed clear bargaining is ride. Laws passed in Massachusetts and elsewhere that gave defendants the right to testify at trial had probably the unintended effect of discouraging defendants with criminal pasts I'm going to trial Charge bargaining- negotiating over charges filed. Sentence bargaining- negotiating over sentence prosecutor will recommend in the twentieth century, please bargaining played a surprisingly direct role in assisting the creation of public defenders in turn, these organizations for defense of the poor assured that in a majority of criminal cases, the defense lawyer would share the prosecutors and judges interested in maximizing systemic efficiency and hence and plea bargaining Prosecutor has to have some sort of formal delivery message. Defendant wont take a plea unless they are getting something out of it Noticed that while langbein emphasizes the role of jury trials and defense lawyers and plea bargaining is Rise, Fisher emphasizes the role of sentencing- Massachusetts prosecutors gain the power to bargain B gaining power over defendant sentences, and that power has been reinforced by developments like probation and the rise of detailed sentencing guidelines

US v pollard

US v pollard- pollard Argued that he was unfairly pressured into pleading guilty at by the desire to protect his wife, who is seriously ill at the time, from a possible life sentence as his alleged accomplice -the court said- to say that I practice is coercive or renders a plea and voluntary means only that it creates improper pressure that would be likely to overbear the will of some innocent persons and cause them to plead guilty. We can understand how it might be thought that a threat of long imprisonment for a loved one, particularly a spouse, Wisconsin to even greater pressure on a defendant then a direct threat to him -the court of appeals upheld the Polly, concluding that the purported distinctive risks associated with protecting a family member does not seem to be the sort of widely shared intuition upon which our constitutional rule should be based. The court was also unimpressed with acclaimed additional pressure is defendant fell out because of his wife's ill health -the appropriate dividing line between acceptable and unconstitutional complete wiring does not depend upon the physical condition or personal circumstances of the defendant; rather, it depends upon the conduct of the government. -Where, as here, the government had probable cause to arrest and prosecute both defendants in a related crime, and there is no suggestion that the government conducted itself in bad faith in an effort to generate additional leverage over the defendant, we think a wired plea is constitutional

Disclosure by the defense

Weatherford v bursey: 1. no general constitutional right to gov discovery 2. Constraints on defs discovery obligations: a. Due process clause (mutuality requirement btw defendant and prosecution) b. Self incrimination clause (covers compelled communications by defendant themselves) fifth amendment- (self incrimination clause) no person shall be compelled in any criminal case to be a witness against himself

Rule 16

a. Governments disclosure 1. Info subject to disclosure A. Defendants oral statement. Upon a defendant's request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent IF the government intends to use the statement at trial (in case in chief- not evidence they only plan to use to impeach) (generally the presumption is nondisclosure- o'rourke statement) -gov has no duty to disclose statements by co-defendant -gov cannot say at trial a confession by a co-defendant unless the co-defendant testifies at trial B. defendants written or recorded statement. Upon a defendant's request, the government must disclose to the defendant, and make available for inspection, copying, or photocopying, all of the following: I. any relevant written or recorded statement by the defendant if: - the statement is within the government's possession, custody, or control; and - the attorney for the government knows or through due diligence could know that the statement exists; II. the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent; and III. the defendants recorded testimony before a grand jury relating to the charge defense (doesn't matter if gov intends to use the statement) C. organizational defendant. Upon a defendant's request, if the defendant is an organization, the government must disclose to the defendant any statement described and Rule 16a1A and B if the government contends that the person making the statement: I. was legally able to bind the defendant regarding the subject of the statement because of that person's position as the defendant's Director, officer, employee, or agent; or II. was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person's position as the defendants director, officer, employee, or agent

Bordenkircher v hayes cont

holding: we hold that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant Alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the due process clause of the 14th Amendment Rule: to punish a person because he has done with the law plainly allows them to do is a due process violation of the most basic store. But in the give-and-take of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer - defendant advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation - while confronting a defendant with the risk of more severe punishment Bailey may have a discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices is an inevitable and permissible attribute of any legitimate system which tolerates and encourages the negotiation of pleas it follows that, by tolerating and encouraging the negotiation of please, this court has necessarily accept it as constitutionally legitimate the simple reality that the prosecutors interest at the bargaining table is to persuade the defendant to forego his right to plead not guilty - in our system, so long as the prosecutor has probable cause to believe that the accused committed an offence to find by Statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature's constitutionally valid definition of charge table offenses, the conscious exercise of some selectivity and enforcement Is not in itself a federal constitutional violation so long as the selection was not deliberately based on an unjustifiable standard such as race, religion, or other arbitrary classification

kyles notes 3

in the context of the government's constitutional obligation to preserve evidence that might assist the defense- arizona v youngblood court concluded that the state's failure to properly preserve this evidence for testing did not require reversal of the conviction in the absence of any showing that the police acted in bad faith -Evidence will be presumed to be exculpatory if destroyed in bad faith; there is a contrary presumption if destroyed in good faith

inducements cont

more generally, the court adopted a definition of voluntariness that presumes that, as long as the defendant was fully aware of the terms of the deal, the resulting flea with voluntary in the absence of government misconduct -a plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats ( or promises to discontinue improper harassment), misrepresentation including unfulfilled or unfulfillable promises, or perhaps by promises that are by their nature and proper as having no proper relationship to the prosecutors business

Taylor cont

reasoning: the state's interest in the orderly conduct of a criminal trial is sufficient to justify the imposition and enforcement of firm, so not always inflexible, rules relating to the identification and presentation of evidence - Discovery, like cross-examination, minimizes the risk that a judgment will be predicated on incomplete, misleading, or even deliberately fabricated testimony. The state's interest in protecting itself against an 11th hour defense Is merely one component of the broader public interest in a full and truthful disclosure of critical facts - if a pattern of Discovery violations is explicable only on the assumption that the violations were designed to conceal a plan 2% fabricated testimony, it would be entirely appropriate to exclude the tainted evidence regardless of whether other sanctions would also be merited - the trial judge May certainly insist on an explanation for A party's failure to comply with a request to identify their Witnesses in advance of trial. That explanation reveals that the omission will be willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to educe rebuttal evidence, it would be entirely consistent with the purposes of the compulsory process clause simply to exclude Witnesses testimony - the Simplicity of the compliance with the discovery rule is also relevant. As we have noted, the compulsory process clause cannot be involved without the prior planning an affirmative conduct of the defendant. Lawyers are accustomed to meeting deadlines it would demean the high purpose of the compulsory process clause to construe it as encompassing an absolute right to an automatic continuance or mistrial to allow presumptively perjured testimony to be presented to a jury - regardless of whether Prejudice to the prosecution could have been avoided and this particular case, it is plain that the case fits into the category of willful misconduct in which the severest sanction and appropriate. The pre-trial conducts revealed by the record in this case gives rise to a sufficiently strong inference that Witnesses are being found at really weren't there to justify the sanction of conclusion - the argument that the client should not be held responsible for his lawyer is misconduct strikes at the heart of the attorney-client relationship. The lawyer has- and must have- full authority to manage the conduct of the trial

the effect of a guilty plea

•A guilty plea it resolved the substantive charges against the accused, but it does much more than that. A guilty plea and not only extinguishes the right to a trial and the related rights set forth in rule 11b1, it also sweeps away most of the legal challenges a defendant either already has raised or would be entitled to raise if he proceeded to trial -If, for example, a defendant plead guilty but prior to that had raised challenges based on an illegal search, improper joinder, or a coerced confession, The Plea will normally prevent the defendant from Later filing an appeal on these grounds -and unconstitutional guilty plea it waves all non-jurisdictional claims that the defendant could have raised •The plea must be unconditional -the norm in criminal procedure is not to allow interlocutory Appeals •conditional guilty plea- Under rule 11a2, the parties can agree that defendant will plead guilty, thus avoiding an unnecessary trial, while preserving and writing the right to appeal and adverse determination of a specified pretrial motion -it's a defendant loses on appeal, the guilty plea and resulting conviction stand. It's a defendant when he is allowed to withdraw his guilty plea •an unconditional guilty plea waves all 9 jurisdictional issues, while a conditional plea identifies those issues that are not waived

Guilty pleas and plea bargaining

•After the defendant has been charged by indictment or by information, the next normal step is the arraignment -as described in rule 10, the arrangement is a simple, in court hearing where the defendant is informed of the charges against him and then asked whether he pleads guilty or not guilty ( the defendant might also wish to plead nolo contendere- no contest- but for the moment you can consider this just another form of a guilty plea •Rule 10a- an arrangement must be conducted in open court and must consist of: (1) ensuring the defendant has a copy of the indictment or information; (2) reading the indictment or information to the defendant or speeding to the defendant the substance of the charge; and then (3) asking the defendant to plead to the indictment or information •Guilty plea constitutes a waiver of trial and collateral rights with respect to you charge -Guilty plea counts as an adjudication of the facts

Factual basis

•Before accepting a guilty plea, the court is required by rule 11b3 to find a factual basis to support it •Therefore, district judges must satisfy themselves that there is enough evidence of the defendant guilty to justify entering a conviction on the crime in question -Thee is no specific standard of proof the court needs to satisfy although it is agreed that a valid factual basis can be based on far less than proof beyond a reasonable doubt -In finding the factual basis, the court free to look to a wide variety of on the record sources: the judge can review the documentary evidence, question the prosecutor , question defense counsel, and review any presentence report -Often, however, the court will want to hear the info directly from the defendant, and ask the defendant to allocute and describe what he did and his relevant state of mind •One curiosity about the factual basis requirement is taht it does not apply to a plea of nolo contendere

plea withdrawal cont

•Defendants innocence seems to play an increasingly prominent role in courts analysis of withdrawal motions •The defendants opportunity to withdraw his plea drops significantly once the court imposes a sentence. Once the defendant is sentenced the case is over, and the defendants ability to withdraw his plea in the district court has ended; now a guilty plea may be aside only on direct appeal or collateal attack . Rule 11e •Two of the most common grounds for attacking a guilty plea after the case has left the district court are: (1) a claim that the prosecutor breached the terms of the plea agreement, which theby undermines the validity of the guilty plea; and (2) a claim that the defendant received ineffective assistance of counsel during the plea process

The subject matter of plea bargaining

•For the parties to strike a plea bargain, each side must have something to give that the other side wants. And general, prosecutors are interested in getting convictions and in getting information that will lead to more convictions •what Can the defendant get from the prosecutor? Rule 11c1 Describe three types of permissible plea deals -type A- a prosecutor can agree not to file other charges or dismiss charges that are already filed. This is charge bargaining -under a type B agreement, the defendant pleads guilty in return for a sentencing recommendation by the prosecutor, or an agreement not to oppose the sentence for busted by the defense. •only the judge can fix the sentence, and under tight beam the defendant is bound to keep his part of the deal and plead guilty, even if the judge decides to reject the prosecutor's recommendation and sentence and the defendant more severely than the party's contemplated -Type C- normally requires the defense to have more leverage when negotiating. Here, the parties agree that the defendants guilty plea is expressly conditioned on the sentence that the defendant received being no higher than a fixed amount ( or alternatively that a particular provision of the sentencing guidelines or some sentencing Factor does not apply) •if the judge accepts the plea deal and allows the defendant to plead guilty, she has been precluded from later and posing a sentence beyond the maximum agreed to by the parties •on the other hand, if the judge rejected the plea deal because she believes that the agreed to sentence is too low, the defendant is no longer bound and is not obligated to plead guilty •the types of plea Bargains listed in rule 11 are not exhaustive

santobello notes

•Gov needs good faith. For ex, even if something isnt specifically promised in the agreement, gov still may have to do it if the defendant reasonably expected it •Def can negotiate for other concessions •Brady v US held that promising a defendant some charging or sentencing concession did not automatically rndr a guilty plea involuntary; santobllo holds that if the gov promises such concessions, it must keep its promises •Santobello says that there is a violation even if the broken promise made no difference to the case- even if the trial judge would not have been influenced by the prosecutors improper recommedation, defendant is entitled to relief -As long as the defendant properly objects to the governments breach, that error cannot be considered harmless

ruiz notes

•Holding in ruiz is limited to the failure to disclose impeachment evidence or evidence going to affirmative defenses before entering into a plea agreement -In Kyles however, the chord you're no distinction between impeachment information and other sorts of exculpatory evidence. The court had explicitly rejected this distinction in Giglio v US •does the decision mean that there are now three classes of Brady information? -The first, as described in ruiz, includes information that the prosecutor knows establishes the defendants factual and a sentence -the second is impeachment material and information affecting affirmative defenses; here, ruiz is clear that the prosecutor has no duty to disclose prior to a guilty plea

kyles notes

•Holding: the depression of favorable evidence is material for Brady purposes if there is a reasonable probability that, had the evidence been disclosed, the result of the preceding would have been different •Turner v US- not a brady violation bc failed materiality standard. Impeachment was largely cumulative of eviednce that was already introduced at trial. The info was "too little, too weak, or too distant from the main evidentiary points to meet brady standard" -The evidence in question included stuff that could have impeached several of the witnesses and info that was consistent with a single person committing the murder (instead of seven defendants) •Connick v thompson- does brady require the police and prosecutor to affirmatively pursue the new info, without knowing whether it is favorable to the defense or to the state? -Police recovered blood sample at the scene of crime, and blood came from perpetator. Rather than test the sample against defendants blood, prosecutor never disclosed the sample to defense and didn't tell defense it know the perpetrators blood type -SCOTUS ruled that defendant could not sustain a §1983 claim against DA under failure to train theory

The role of defense counsel

•In missouri v frye, the supreme court held that the sixth amendment right to the effective assistance of counsel applies during the plea bargaining process •Defendants may be provided a remedy by a reviewing court- invluding the possibility that the prosecutor may be required to re-offer the bargain, as well as the possibility that the court may unilaterally revise the defendants sentence to reflect the bargain that never happened -The court suggested, unhelpfully, that the reviewing court may at its discretion give the imposed under the bargain, or something in between

plea bargaining

•Often, the prosecutor will offer a plea bargain- she will offer the defendant a benefit if he pleads guilty or threatened a consequence if he insists on going to trial and losses •Bram v US- confessions may not be obtained by any direct or implied promises however slight. This describes plea bargaining exactly: and admission of guilt in exchange for a promise benefit or promise not to impose some further legal harm •it was not until 1970 in Brady v US that the Supreme Court explicitly approved the practice of plea bargaining -well the court did not overrule Bram, a distinguished confessions that are given outside the courtroom, often without a lawyer, from the formal in court admission in the presence of Defense counsel and the judge that occurs at a plea hearing

Ricketts notes

•One black letter principle of contract law is that ambiguities in th contract are construed against the drafter of the agreement, which means that in the plea bargain setting, they are construed against the government •The court appears to hold that aizona can permissibly define adamsons conduct as a breach and can permissibly allow the government to rescind the plea agreement as a remedy. But arizona is not required to define either breach or remidies in this way

inducements to plead

•Plea bargaining doctrinal takeaway: -No substantive review of the differential between the expected sentence after plea and expected sentence after trial. (bordenkircher) -No review of whether the size of that differential poses an unaccptable danger that an innocent def will plead guilty -Something else *look at slides -Prosecutors need not disclose impeachment info prior to a plea bargain (ruiz) -No inquiries into prosecutor motivation to figure out what she really thought was the appropriate sentence (bordenkircher) •Brady v US- Mr. Brady was charged with kidnapping and under the law at the time, face the death penalty if he went to trial and was convicted, but at most a life sentence if you plead guilty. When Brady later challenge the validity of his plea by arguing that it was coerced by the prospect of the death penalty, the court was unsympathetic -there was nothing in the record, said the court, to suggest that Brady was so gripped by the fear of the death penalty or hope of leniency that he did not or could not, with the help of console, rationally weigh the advantages of going to trial against the advantages of pleading guilty -in other words, the choice between a certain long prison sentence and a potential death sentence was not inherently coercive as long as the defendant, with his lawyers assistance, could freely and rationally choose between the hard choices presented, his ultimate decision was voluntary -Re: the plea was not "intelligent" or knowing- just bc the statute convicted on at the time was based on a faulty premise. Still knowing based on the statute at the time (like statute had not yet been ruled unconstitutional)

Interpreting and enforcing guilty pleas and plea bargains

•Plea bargains are, at their core, contracts and with some important exceptions, are to be interpreted and enforced according to principles of contract law. Garza v idaho •Thus, for example, courts agree that plea agreements are to be construed according to the ordinary meaning of their terms, and that any ambiguities in the plea agreement will be construed against the gov as the drafter -Courts generally agree with the view expressed by the fourth circuit that while we employ traditional pinciples of contract law as a guide in enforcing plea agreements, we nonetheless give plea agreements greater scrutiny than we would apply to a commercial contract because a defendants fundamental and constitutional rights are implicated when he is induced to plead guilty by reason of a plea agreement. US v edgell •If the defendant agreed to plead guilty in return for a sentencing recommendation (type B agreement) •Many, perhaps most, plea bargains involve a guilty plea to some charges and the dismissal of others (these are the type agreements) -Presumably, the charges dismissed cannot be reinstated once the guilty plea is entered, at least not unless the plea agreement so specifics

Langbein, understanding a short history of plea bargaining

•The victim or other complaining witness, sometimes aided by the law constable and the law Justice of the Peace, performed the role we now assign the public prosecutor, Gathering evidence and presenting it at trial. As a result, jury trial was not yet protracted by the Motions, Maneuvers, and speeches of council that affects the modern trial •it should surprise no one that in a system of trial as rough and Rapid as this there was no particular pressure to develop non trial procedure •when the transformation of jury trial left the trial system clogged, the pressure of caseloads could find release in the exercise of prosecutorial discretion much more naturally •Defendants rights develop, and as they do, prosecutors get more incentive to buyback more rights by exchanging sentencing leniency. Prosecutors get this power of sentencing leniency from the judge On langbeins Account, we bargaining a rose out of the intersection of 3 phenomena: elaborate jury trials, the use of lawyers to present the prosecution and defense cases, and prosecutorial discretion

knowing notes

•Rule 11b Expressly required that the judge determined that the defendant understands the information listed above •courts have consistently found that the list of information that must be conveyed pursuant to rule 11 is exhaustive; cords are under no duty to inform the accused of the other bad consequences that follow a conviction •Padilla v kentycky - when a defense lawyer failed to give his non-citizen client the correct information about the deportation risk see ran by pleading guilty, this was deficient performance for purposes of an ineffective assistance of counsel claim •claims still do arise, most often because the judge failed to say something that rule 11 required her to tell the defendant -these challenges are subject to the demanding plain error standard on appeal -US v dominguez benitez - the defendant who is trying to undo his plea because of add affected rule 11 colloquy can Prevail only a few shows that there is a reasonable probability that but for error, the defendant would have decided not to plead guilty -a defendant must have satisfied the Judgment of the Reviewing Court, informed by the entire record that the probability of a different result is sufficient to undermine confidence in the outcome of the preceding •the standard is hard to meet •the court also said that if there is evidence in the record that the omitted information was provided to the defendant by his lawyer prior to the guilty plea, the judge's failure to convey rule 11 information will be harmless. Bradshaw v stumpf

Voluntary

•Rule 11b2 - Before accepting a plea of guilty or no contest, the court must address the defendant personally in open court and determined that the police voluntary and did not result from force or threats •Brady v US- the Supreme Court expressly held that plea bargaining did not itself render please involuntary and the rules of procedure were changed accordingly -it is still impermissible to coerce a plea through for threats, but the court now asks whether the guilty plea was induced by promises other than in a plea agreement -as a result, although a physically coerced guilty plea would still be illegal and invalid, most voluntariness challenges to guilty pleas since Brady has stemmed from claims that the government bargain improperly (for example, where the government made some a miscible threat in the course of bargaining for the Plea •Voluntary- noncoerced

Plea withdrawal

•Rule 11d provides that even if defendant agrees to plead guilty, and even if he has signed a formal agreement promising to plead guilty, he remains free to change his mind for any reason or no reason up until the time the court accepts his plea -Normally, the district court accepts a guilty plea after the in court rull 11 colloquy so in general no agreement to plead guilty in the future ius binding: it is only when the defendant stands before the judge and actually pleads guilty, and only when the court accepts it, that the terms of the plea bargain become enforceable •The same rule apparently applies to the prosecutor. Marby v johnson -Nothing about the withdrawn plea offer rendered defendants eventual guilty plea unknowing or involuntary. At least in the absence of detrimental reliance, said the court, the prosecutors decision to withdraw the offer after it had beeen accepted was not constitutionally significant •Defendant may be allowed to withdraw his guilty plea after the court has accepted it and prior to sentencing if he can show a fair and just reaosn for requesting the withdrawal. Rule 11d2B •All courts agree that a defendant does not have an absolute right to withdraw his plea, and that he must demonstate more than a mere change of heart to be allowed to do so -In addition, practically every court employs a multi-factor list of considerations in deciding whether the defendant has offered a fair and just reason

williams notes

•Rule 16b Requires a defendant to disclose: anything with in his possession that he intends to use in his case and chief at trial; (2) any reports or results of physical or mental examination that he intends to use in his case and chief or that were prepared by a witness he intends to call and that relate to the witness's testimony; (3) a written summary of any expert testimony that he intends to use describing the opinions, bases, reasons for the opinions, and qualifications of the expert •Rule 26.2 also requires the defendant to provide certain witness statements to the government after a defense Witness ( excepting the defendant himself) has testified on direct examination at trial •other than the notice of Defense requirements and rules 12.1, 12.2, and 12.3, the defendant virtually never has to reveal substantiv information prior to trial that harms the defense case -Rule 16b1 - note that before the defense has to disclose documents or reports or expert witness summaries, the information must either be such that the defendant plans to introduce it and his trial case and chief, or it must pertain to a witness that the defense intends to call -so if the defense Council finds, for example, I document that plainly implicates her client and a crime, she is not obligated to turn it over under rule 16 even if the government has made comparable disclosures •defense disclosure in many states is broader than in the federal system •Wardius v oregon- the court expanded on the summary due process and analysis in Williams. the court unanimously concluded that the due process clause does speak to the balance of forces between the accused and his Accuser -the case invalidated a notice of Alibi provision that did not provide for reciprocal discovery of the prosecution

sanctions for non-disclosure

•Rule 16d2 - When a party has failed to comply with a discovery obligation, the court May: (a) order that party to permit the discovery or inspection; specify its time, place, and manner that my colon and prescribe other just terms and conditions; (b) Grant a continuance; (c ) prohibit that party from introducing the undisclosed evidence; or (d) enter any other order that is just under the circumstances •words have a lot of latitude in deciding on a remedy

Knowing

•The Plea colloquy can be wide ranging. the court will often Begin by asking the defendant about his age, his health, is education level, is employment status, his command of the English language, and whether he has mental health or substance abuse problems -the court has been likely to turn to the defense counsel and ask if she has any questions about the ability of the accused to understand the proceedings •Rule 11b1 says that before court can accept a guilty plea, the judge must inform the defendant of 14 items and ensure that the defendant understands them (and judge must make a record of this advice) -The first and most obvious item is that the defendant must be aware of the precise charge to which the defendant is pleading guilty; this typically means that he must be informed by the judge of the elements of the crime charged -the court then advises the defendant of some of the right he's giving up if he pleads guilty and: the right to plead not guilty, the right to jury trial, the right to have a lawyer at every stage of the process including trial, the right to confront his accusers -the court also informs the defendant of the impact of the guilty plea: ->the maximum possible penalty be accused faces on conviction ->any mandatory minimum sentence that the judge will have to impose ->any applicable for Richard the defendant faces, and the Court's authority to order restitution ->the courts duty to consider the federal sentencing guidelines ->is the defendant is pleading guilty pursuant to a plea agreement, and that agreement contains a waiver of the right to file an appeal or seek post-conviction relief, the court must ensure that the defendant is aware of the waiver provision ->if the defendant is not a US citizen, a conviction may have immigration or citizenship consequences •only if the defendant personally affirms that he understands each of these coins cuz the judge find that the guilty plea is made knowingly •Defendant has some knowledge of the rights they are giving up

rule 11 and The Plea process

•When a defendant pleads guilty, the case is effectively over -there are still some important steps that lie ahead- the defendant must be sentenced and there might be an appeal, but a guilty plea resolves the charges against the accused •in a small number of cases the defendant May plead no contest instead of guilty, although at least for criminal law purposes, the effect is largely the same -a no-contest plea is simply a declaration by the accused that, while he does not admit the allegations against him, he will not contest the charges and will permit the court to treat him as if he had pled guilty. The result is a conviction -the primary distinction is that unlike a guilty plea, a no-contest plea is not an admission of guilt and if the defendant is later suit and a civil action he is not estopped from denying the facts on which the criminal charges based •a defendant who wishes to plead guilty of years with counsel in open court along with the prosecutor. A judge is not required to place the defendant under oath, but it is considered better practice to do so -the judge then engages in a colloquy with a defendant personally- the judge speak to the accused to make sure the defendant is entering a valid plea

kyles notes 2

•although prosecutors make the threshold decision whether evidence constitutes Brady material, they must be fair-minded and how they evaluate conflicting evidence -In smith v cain, the lone witness to a multiple murder told the police, both at the scene and several days later, that he could not identify the shooter. The witness subsequently changed his story and positively identified Smith as the Killer, and testified to that effect at trial. The prosecutor did not disclose the witnesses earlier inconsistent statements -noting that eyewitness testimony was the only evidence linking Smith to the crime, the Supreme Court found a Brady violation •The kyles majority opinion notes to important qualifications on the scope of the Brady Doctrine -the first was that the prosecutor is not only obligated to turn over information that is in her possession, but also has a duty to learn of any favorable evidence known to the others acting on the government's behalf and the case, including the police -this means that it is no defense to an alleged Brady violation that the prosecutor did not realize the favorable evidence existed- Brady imposes an obligation on the prosecutor to go looking for the information -second, the good or bad faith of the prosecutor is legally irrelevant to the question of whether there was a Brady violation -Brady disclosure applies to entire prosecution team, not just the state attorney

rule 16 notes 2

•despite the language of the statute however in many federal courts it is the practice of prosecutors to provide 3500 or jencks material to the defense shortly before trial begins or shortly before the witness testifies, rather than after the witnesses testify on direct •About two-thirds of the states provide for defense discovery of the names of prospective government Witnesses -the disclosure requirement is not absolute. Judges in a mandatory disclosure regime can issue protective orders restricting Discovery inappropriate cases -Rule 16 itself provides for such orders: at any time the court May 4 good cause deny, restrict, or defer Discovery or inspection, or Grant other appropriate relief. The court May permit a party to show good cause by a written statement that the court will inspect ex parte. Rule 16d •A substantial majority of discovery regimes contain some versio of rule 16's provision for turning ove to the defense the reuslts of scientific tests

hodge notes

•supposed offending offers to plead guilty to the sale, but in return wants the prosecutor to stipulate that there was no weapon involved. The justice department has taken the position that stipulations to untrue facts are unethical •one common provision and agreements is that the defendant agrees to waive any appeal rights and post-conviction challenges. Every federal court of appeals has found these Provisions valid -some courts have refused to enforce appeal waivers and limited circumstances, such as when the district court failed to follow rule 11 and taking the police, the sentence imposed violated the plea agreement for the Statue, or the prosecutor breached the plea agreement. US v brizan •US v mezzanatto- Normally, under Federal rule of evidence 410, discussions during Queen ago she a shins are inadmissible in a later trial against the accused if those discussions failed to result in a deal. The government made it a condition of the discussions that the defendant wave the protection and allow the government to use his statements as impeachment evidence. Defendant argued that the admissibility of plea discussions should be considered on waiverable, but the Supreme Court disagreed