Chapter Nine
Pretrial Motions, Hearings
and Plea Negotiations
If criminals wanted to grind justice to a halt, they could do it by banding together and
all pleading not guilty. It’s only because we have plea-bargaining that our criminal
justice system is still in motion.
— Dorothy Wright Wilson, former dean, Southern California Law Center, 1974
KEY WORDS
Key terms to understand for this chapter…
•
•
•
•
•
Motion to Suppress Evidence
Negotiated Plea
Notice-of-Alibi Defense
Pretrial Discovery
Severance
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
OBJECTIVES
After completing this chapter, you should be able to…
• Discuss the defendant’s right to pretrial discovery.
• Explain the various motions that may be made by
counsel.
• Identify and explain the importance of evidentiary
motions.
• Discuss the reasons for pretrial conferences.
• Explain the rationale behind the requirement to provide
notice of an alibi defense.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
OBJECTIVES
(cont.)
After completing this chapter, you should be able to…
• Discuss the prosecutor’s right to pretrial discovery.
• List and explain the issues involved in plea bargaining.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
INTRODUCTION
• Prior to a trial, prosecution & defense each may request
the trial judge take some action on a particular matter,
usually referred to as motions.
– may be made orally to the judge, but in most instances
in written form and filed with the appropriate court
• Generally, the judge will hold a hearing to allow each
side to present arguments for & against the motion.
• One of the earliest motions that may be filed is for
pretrial discovery.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Pretrial Right of Discovery
• One of the responsibilities of attorneys for prosecution
and defense is to exercise the right of discovery.
• It is of comparatively recent origin, was unknown at
common law and still not recognized in some states.
• Right of discovery is the pretrial right of the adversary
to inspect, review, and copy certain materials held by
the opposition.
– anticipated to be introduced as evidence during the trial
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Pretrial Right of Discovery
Defendant’s Right of Discovery
• Pretrial discovery was created primarily for defendants.
– to assist in case preparation & aid in obtaining a fair trial
• The right would enable a defense attorney to better
cross-examine witnesses for the prosecution.
– and assist impeaching witnesses of questionable credibility
• Right of pretrial discovery comes into being by court
decisions or legislative action, and exercised two ways.
– a defense oral request to examine material held in the case
– written request by the defendant’s attorney in the form of a
motion to produce the evidence held by the prosecution
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Pretrial Right of Discovery
What the Defendant May Inspect
• Material & information a defendant may examine varies.
– some states & the federal government are quite liberal
• Rule 16 of the Federal Rules of Criminal Procedure is
typical of the broader right of discovery by a defendant:
– …Upon request of the defendant the government shall permit
the defendant to inspect and copy or photograph books,
papers, documents, photographs, tangible objects, buildings
or places, or copies or portions thereof, which are in the
possession, custody or control of the government, …intended
for use by the government as evidence in chief at the trial, or
were obtained from or belong to the defendant.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Pretrial Right of Discovery
Denial of the Right of Discovery
• A few states have not granted right of pretrial
discovery to a defendant in criminal matters.
– alleging it to be a one-way street created for the defendant
• It is also alleged the defendant already has advantages
in a criminal trial because the prosecution must prove
the defendant guilty beyond a reasonable doubt.
– right of discovery would be an additional advantage
• In states where pretrial discovery is not recognized, the
defendant must rely on the preliminary hearing.
– for any assistance received in case preparation
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Pretrial Right of Discovery
Denial of the Right of Discovery
• Those arguing against permitting a defendant the right
of discovery often quote a statement made by Judge
Learned Hand in the case of US v. Garison:
– “While the prosecution is held rigidly to the charge, he [the
defendant] need not disclose the barest outline of his defense.”
– “Why in addition he should in advance have the whole
evidence against him to pick over at his leisure, and make
his defense, fairly or foully, I have never been able to see.”
– “What we need to fear is the archaic formalism and the
watery sentiment that obstructs, delays, and defeats the
prosecution of crime.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Pretrial Right of Discovery
Prosecution’s Right of Pretrial Discovery
• States recognizing right to pretrial discovery have
granted little pretrial discovery right to the prosecution.
• This tends to support the contention that the right of
pretrial discovery is a one-way street.
• A convincing argument
against pretrial discovery
by prosecution is that the
right would compel the
defendant to be a witness
against himself or herself.
Two attorneys talk with judge in courtroom.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Pretrial Right of Discovery
Prosecution’s Right of Pretrial Discovery
• One state supreme court has held the prosecution must
prove the defendant guilty beyond reasonable doubt
– and that any discovery by the prosecution that would
lessen that burden is not permissible
• This holding by that court has been highly criticized in
legal circles as being too restrictive and without merit.
• Rule 16 of the Federal Rules of Criminal Procedure
grants to the government (the prosecution) almost the
identical rights of pretrial discovery that are granted to
the defendant.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Pretrial Right of Discovery
Prosecution’s Right of Pretrial Discovery
• Several states and the federal government have adopted
a requirement that a defendant advise the prosecution
in advance of trial that an alibi defense is to be used.
– most difficult to refute, as it usually comes late during the
trial, catching the prosecution by surprise
• Requirement that this information be furnished to the
prosecution upon demand has received sanction of the
US Supreme Court in Williams v. Florida.
• Despite the Williams decision, a number of states have
not passed legislation requiring a defendant to notify
the prosecution that he/she plans an alibi defense.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Pretrial Right of Discovery
Prosecution’s Right of Pretrial Discovery
• The defendant in a criminal trial is frequently forced to
testify himself and to call other witnesses.
– and reveal their identity &submit them to cross-examination
which which may furnish the State with
rebuttal evidence
• Such dilemma has never been thought
an invasion against compelled selfincrimination.
Susan Smith enters the Moss Judicial Center courtroom in York, South
Carolina for a mental competency hearing.
Mrs. Smith was charged with two counts of murder in connection with
the deaths of her sons Alex, fourteen months, and Michael, three.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion to Suppress Evidence
• At common law, it was held any evidence assisting in
determining the truth of what happened in a particular
case was admissible during a trial.
– followed for a number of years in spite of constitutional
guarantees against unreasonable searches and seizures
• Inadmissibility of unlawfully obtained evidence is
known as the Exclusionary Rule.
• The 1961 landmark case Mapp v. Ohio placed the
Exclusionary Rule in effect for all the states.
– since that decision, much use has been made of the motion
to suppress evidence
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion to Suppress Evidence
Hearing to Suppress
• The hearing to suppress evidence must be held prior to
trial time in some jurisdictions, before a judge alone.
– if the judge concludes the evidence was illegally obtained,
he/she will suppress it or hold it is not admissible
– if the judge believes the material was lawfully obtained, it
may be introduced during the trial & the jury will give the
evidence the weight to which they feel it is entitled
• The hearing must be made prior to the trial because it is
felt the trial judge should not stop midtrial to determine
whether evidence was lawfully obtained.
– in some jurisdictions
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion to Suppress Evidence
Hearing to Suppress
• If evidence is inadmissible, the prosecuting attorney
may decide to dismiss the charge if a conviction would
not be possible without the suppressed evidence.
• In jurisdictions where pretrial motion to suppress is not
mandatory, many defense attorneys will not file a
pretrial motion.
– but will wait & object to introduction of the evidence at
the preliminary hearings
• It is the prosecution’s responsibility to present
testimony in an effort to prove that the evidence was
lawfully obtained.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion to Suppress Evidence
Grounds for Evidence Suppression
• Obtaining confessions and unreasonable searches and
seizures are two areas that include numerous grounds
for challenging the introduction of evidence.
– confession obtained through the psychological pressure
of threats or promises would be suppressed
– search warrants may be improperly issued, or permission
for consent searches involuntarily may be given
• An officer exceeding the permissible area on a search
incident to arrest provides grounds for a motion to
suppress.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion to Dismiss Charges
• After a complaint, information, or indictment has been
filed against, facts are sometimes revealed that, in the
interest of justice, demand that the charge be dismissed.
• the action may be taken by the prosecutor and is known
as “entering a nolle prosequi.”
• Some jurisdictions don’t grant
the prosecuting attorney nolle
prosequi authority.
– a charge may be dismissed only
by a judge, judicial motion, or
prosecutor recommendation
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
Courtroom scene with judge, defense,
prosecution attorneys and court reporter.
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion to Dismiss Charges
• Dismissal by a judge on judicial or defense motion is
not always a bar to further prosecutive action on the
matter, particularly if the charge is a felony.
– the prosecuting attorney may refile the charge
• How many times this action may take place is not
firmly established.
– right to a speedy trial prevents too many dismissals and
refilings from taking place
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion for Continuance
• Most state codes provide no continuance of criminal
trial shall be granted except where the ends of justice
require a continuance.
– criminal cases are to be heard as soon as reasonably
possible, and given precedence over civil matters
– codes also provide continuance shall not longer than required
• Despite these provisions, no motion is made with
greater frequency than the motion for a continuance.
– particularly by the defense
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion for Continuance
Grounds for a Continuance
• There are no specified grounds on which the
continuance may be based, though justice requires
continuance to obtain a material witness.
– the side making request must present evidence on why the
witness is material, and why the testimony is not available
through any other witness
• Continuances have been granted so defendants may
obtain effective counsel, when a defendant is not
physically able to attend the trial, or the defense
attorney is ill or engaged in another trial
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion for Continuance
Grounds for a Continuance
• A continuance will usually be granted for thirty to sixty
days, after which a new request may be made.
– many criminal trials are not heard for more than a year
after the crime has been committed
• When motion is to be made, reasonable notice must be
given to the trial judge and the opposing side.
– reasonable notice is difficult to determine
• The defense makes frequent requests for continuances
as they usually work to the advantage of the defendant.
– possibilities of prosecution witnesses’ becoming unavailable
and memories dulling increase with the passage of time
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion for Severance of Offenses
• Criminals often commit a series of crimes in a
relatively short period of time.
• A burglar may commit a number of burglaries within
a few days or weeks, and if caught & charged, it is
logical to try the offender on all charges at one time.
• Most state laws permit a series
of crimes in jurisdiction to be
combined into one accusatory
pleading.
– in an accusatory pleading, each
crime is referred to as a count
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
Judge lecturing attorneys.
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion for Severance of Offenses
• If crimes are all similar, such as all robberies, or all
burglaries, there is no doubt about consolidating them.
• It has also been held that if the crimes are of a different
nature but are part of the same transaction, scheme, or
plan, they may be consolidated.
• A crime of robbery and a crime of burglary could not
be consolidated without being parts of the same
transaction.
• Having a series of crimes consolidated in one trial has
the advantage of avoiding a defense in separate trials.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion for Severance of Offenses
Cross v. US
• At times, a defendant will make a motion for a
severance of offenses, on the premise that several
counts in one trial is prejudicial.
• As stated in Cross v. US:
– “Prejudice may develop when an accused wishes to testify on
one but not the other of two joined offenses which are clearly
distinct in time, place and evidence.”
– “If he testifies on one count, he runs the risk that any adverse
effects will influence the jury’s consideration of the other”
– “Thus he runs the risk on both counts, although he may
benefit on only one.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion for Severance of Offenses
Drew v. US
• In Drew v. US, the Court stated the following:
– … justification for a liberal rule on joinder of offenses
appears to be the economy of a single trial.”
– The argument against joinder is that the
defendant may be prejudiced for one or
more …reasons”
– “… the court must weigh prejudice to
the defendant caused by the joinder
against …economy and expedition
in judicial administration.”
William Orville Douglas was a United States Supreme Court Associate Justice with a term lasting thirtysix years and 209 days, the longest-serving justice in the history of the Supreme Court.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion for Severance of Offenses
Motion for Severance
• Most states hold that two or more defendants jointly
charged with an offense must be tried jointly.
– unless the judge feels separate trials should be granted
– jointly trying codefendants promotes economy & efficiency
• Defendants often file a motion for severance to avoid
the possibility of prejudice.
• Some jurisdictions hold that upon an allegation of
prejudice, a defendant has an absolute right to a
severance.
– whether the trial is a court trial or a jury trial
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion to Determine Competency
• If the mental state of the defendant is in question at any
time prior to or during trial, the defense counsel should
make a motion for a hearing on competency.
– insanity refers to the mental state at the time of the act
– competency refers to mental state at time of the trial
• A hearing may be ordered on competency if actions of
the defendant would cause doubt in the judge’s mind.
• Competency must be determined because a person
cannot be tried, sentenced, or punished while insane.
• The procedure of determining competency is referred
to as both a hearing and a trial.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion to Determine Competency
• Usually the hearing is conducted before a judge sitting
alone, unless the defense demands a jury trial be held.
• The competency hearing should not be confused with a
trial on a plea of not guilty by reason of insanity; it has
nothing to do with guilt or innocence.
– it ascertains the defendant’s present mental capabilities
• The test of competency determines the defendant’s
present ability to understand the nature and purpose of
the proceedings.
– and measures capacity to assist in defense in a rational
manner
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Motion to Determine Competency
• Once competency of the defendant is questioned, all
prosecutive proceedings must be halted until the issue
of competency can be determined.
• If a competency hearing determines the defendant is
presently sane, the prosecutive proceedings will
commence again from the point where they stopped.
• This is the case unless the trial on guilt or innocence
was in progress and the trial judge dismissed the jury
and declared a mistrial.
– under those circumstances, the trial would be resumed from
the beginning with a new jury
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Pretrial Conference
• Pretrial conferences are informal meetings, usually in
the judge’s chambers, between attorneys and the judge.
– strong and weak points of the case are discussed in an effort
to arrive at a settlement without going to trial
• Attorneys may try to arrive at some sequence in calling
witnesses, particularly professionals or expert witnesses.
• The attorneys will attempt to agree, or to stipulate, to
certain testimony.
– facts having stipulation are brought to the jury at the
appropriate time, and the jury considers those facts as
though they had been presented in testimony during trial
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Plea Negotiation
• Plea negotiating, (plea bargaining) is agreement to
reduce a charge, or receive a lesser sentence.
– usually shortly after the initial appearance or arraignment,
though it can continue up to the time a verdict is rendered
• Some allege plea bargaining is advantageous to the
state by saving time & money, and increasing
efficiency and flexibility in the criminal process.
• It has been criticized, as it allows a criminal to take
advantage of the justice system by not being convicted
and sentenced for the crime actually committed.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Plea Negotiation
Benefits of Plea Bargaining
• Although criticized, many prosecutors state acceptance
of a negotiated plea is often for more justifiable reasons
than lightening caseloads & clearing busy calendars.
• In the past, plea bargaining was not discussed openly
since it was considered to be unethical, if not illegal.
• The secrecy of plea bargaining was eliminated by
legislative action and court decisions.
• Today plea bargaining is openly engaged in as part of
the justice system.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Plea Negotiation
The Supreme Court and Plea Bargaining
• Much of the change in viewpoint was brought about by
Brady v. US, where the Supreme Court gave sanction
to plea bargaining:
– “…a guilty plea is a grave and so solemn act to be accepted
only with care and discernment has long been recognized.”
– “Central to the plea and the foundation for entering
judgment against the defendant is the defendant’s admission
in open court that he committed the acts charged”
– “He thus stands as a witness against himself and he is
shielded by the Fifth Amendment from being compelled ”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Plea Negotiation
The Supreme Court and Plea Bargaining
• The Court further stated that even if a guilty plea were
entered through some inducement of leniency, that plea
could not be withdrawn at a later date if the plea had
been freely and voluntarily given.
• The standard of voluntariness of a guilty plea was set
forth in the Brady decision.
• Some states prohibit plea bargaining on serious
felonies except under limited circumstances.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Plea Negotiation
Pleas to be Related to Offense Charged
• It has been held a negotiated plea should be related to
the crime charged in the accusatory pleading
– but not confined to the one in the accusatory pleading
• The negotiated plea may be to a lesser offense than the
one in the accusatory pleading.
• It is important the negotiated plea be to a related crime
so a plea will reflect a true history of the crime.
• Often if an accused awaiting trial on two or more
unrelated indictments, a plea bargain will include an
agreement to dismiss the other indictments.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Plea Negotiation
Withdrawal of the Negotiated Plea
• Statutes of states where negotiated pleas have been
enacted usually provide that a negotiated plea of guilty
or nolo contendere must be approved by both the judge
and the prosecuting attorney.
– a guilty plea may be withdrawn if the bargain is not
complied with by the judge or the prosecuting attorney
• Once the approval is given, the bargain must be
complied with, or the defendant may also withdraw the
guilty or nolo contendere plea.
– true even though the defendant may not have been entirely
honest in dealing with the court
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Plea Negotiation
Withdrawal of the Negotiated Plea
• In People v. Johnson, for a negotiated plea of guilty,
the judge promised the defendant the matter would be
handled as a misdemeanor rather than as a felony.
– and the defendant would be given probation
• On discovering the defendant had concealed his true
identity and criminal record, the judge sentenced the
defendant to the state prison.
– on appeal, judgment was reversed & the trial court directed
to permit the defendant to withdraw the guilty plea
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Plea Negotiation
Withdrawal of the Negotiated Plea
• The appellate court relied upon state statute providing:
– “where such plea [negotiated plea] is accepted by the
prosecuting attorney in open court and is approved by the
court, the defendant …cannot be sentenced on such plea
to a punishment more severe than that specified in the plea.”
• In Johnson, the judge failed to inform the defendant of
his right to withdraw the plea.
• The Court held there was a serious misrepresentation
by Johnson, so it was reluctant to create a right, for a
defendant, to a specific performance of an original plea
bargain rather than permit withdrawal of guilty plea.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
Important topics for this chapter…
• Both the prosecutor and the defense have a right to
pretrial discovery.
• The right of discovery was originally created primarily
for the benefit of the defendant.
• There are limitations on what the defendant or defense
may inspect.
• The defense has no right to look at the prosecutor's
work product.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
(cont.)
Important topics for this chapter…
• The defense has no right to examine the prosecutor's
trial folder.
• In a few states where the defendant's pretrial right of
discovery is not recognized, the defendant must rely on
the preliminary hearing for any assistance received in
trial preparation.
• In federal trials, the prosecutor has an almost identical
right to pretrial discovery.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
(cont.)
Important topics for this chapter…
• A motion to suppress evidence is used to determine the
admissibility of evidence prior to trial.
• Whether to grant a motion for a continuance rests with
the trial judge.
• There are no specified grounds on which a continuance
may be based. Justice may require that a continuance
be granted to obtain a material witness.
• A motion for the severance of offenses or defendants
must be made before the start of the trial.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
(cont.)
Important topics for this chapter…
• If the mental state of the defendant is in question,
during the pretrial the defense may request a
competency hearing.
• A plea bargain is an agreement between the prosecutor
and the defense.
• The Supreme Court has sanctioned plea bargaining.
• In some states, like California, there are statutory
restrictions on plea bargaining.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
(cont.)
SUMMARY
Important topics for this chapter…
• A guilty plea based on a plea bargain may be
withdrawn if the bargain is not complied with.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Chapter End