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JUDICIAL PARTICIPATION IN PLEA BARGAINING - A SEARCH FOR NEW STANDARDS

NCJ Number
30296
Journal
Harvard Civil Rights-Civil Liberties Law Review Volume: 9 Issue: 1 Dated: (JANUARY 1974) Pages: 29-51
Author(s)
K GALLAGHER
Date Published
1974
Length
23 pages
Annotation
THIS ARTICLE SUGGESTS STANDARDS TO MAXIMIZE THE BENEFITS AND FAIRNESS OF CONVICTION WITHOUT TRIAL THROUGH EXCLUSION OF THE JUDGE IN THE PLEA NEGOTIATIONS AND AN OPEN AND CONTRACTUAL APPROACH TO SUCH NEGOTIATIONS.
Abstract
IT IS GENERALLY RECOGNIZED THAT JUDICIAL PARTICIPATION IN THE PLEA NEGOTIATION PROCESS CREATES DUE PROCESS PROBLEMS. TWO OPPOSING SOLUTIONS HAVE GENERALLY BEEN SUGGESTED. SOME COMMENTATORS ARGUE THAT THE TRIAL JUDGE SHOULD BE MOVED FROM HIS PRESENT INFORMAL, LOOSELY DEFINED ROLE TO THE CENTER OF THE PLEA BARGAINING SYSTEM. THIS ARTICLE GENERALLY SUPPORTS THE OPPOSITE SOLUTION: THE TRIAL JUDGE SHOULD BE TOTALLY EXCLUDED FROM PRE-PLEA NEGOTIATIONS. THESE ALTERNATIVES ARE ANALYZED FROM TWO DIFFERENT PERSPECTIVES. FIRST, THE CONSTITUTIONAL QUESTIONS ARE EXPLORED. THEN A BRIEF CONSIDERATION OF THE VALIDITY AND APPLICATION OF RECENT CONTRACTUAL APPROACHES TO PLEA BARGAINING IS UNDERTAKEN. THE AUTHOR ARGUES THAT A PRE-PLEA CONFERENCE BEFORE AN IMPARTIAL HEARING EXAMINER COULD BE USED TO SET FORTH CONDITIONS OF THE PLEA NEGOTIATION, THEREBY ENDING THE DEFENDANTS' DANGER OF 'PLEADING IN THE DARK', AND REDUCING THE COERCIVE POWER OF THE PROSECUTOR AND JUDGE. SHE FURTHER STATES THAT REMOVAL OF THE TRIAL JUDGE FROM PRE-PLEA NEGOTIATIONS IS A VITAL STEP TOWARDS ENSURING THAT THE GUILTY PLEA MEETS BOTH CONSTITUTIONAL AND CONTRACTUAL REQUIREMENTS. (AUTHOR ABSTRACT MODIFIED)

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