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Lecture 11

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Department
Law
Course
LAWS 2301
Professor
Ronald Saunders
Semester
Fall

Description
Friday November 25 2011 LAWS 2301: Lecture F-11 Plea bargaining > types & definitions/elements > advantages > criticisms & issues Express Plea Bargains •3 constant elements: - guilty plea - bargain granted only if guilty plea - express negotiations •variable elements: - where/when? - with whom? - why? - what? Quotes that have been said about Plea Bargaining: • Plea Bargaining is the venereal disease of the criminal justice system • Please bargaining is the grease that keeps the justice system running • PB has no place in a decent justice system • PB is inevitable in any system of justice • What we’re doing is treating people as half guilty and giving them half the sentence that they would receive if they were really guilty o PB is the most commonly used Express Plea Bargains: • 3 constant elements: o Always a guilty pleas o Bargain granted only if accused agrees to plead guilty in exchange  Raises the voluntary issue –is it voluntary when giving it to an accused in exchange for something else?  As accused, you are bargaining away from the trial – giving up your right to trial and argue your case over trial  The greater the benefit, the greater to plead guilty o Bargain is result of express negotiations • Variable elements: o Where/when? –often just before trial (last minute deals) –it can be done anytime up to an entering of decision o With whom? –usually the prosecutor, sometimes police (States sometimes involve judges –not in Canada) there are pre trial hearings, where there are indications of what may be acceptable for resolutions  Judges are excluded because it prejudges the case – want to avoid the judge’s bias (him knowing they are willing to plead guilty)  Victim involvement is rare (it happens sometimes when they want to ask the victim/family if it is reasonable) o Why? =advantages o What? Benefits most often given (4 main ones, most often given in exchange) •Reduction in charge –to a lesser or included offence • i.e. sexual assault to assault nd • 2 degree murder to manslaughter •Withdrawal of charges/promise not to proceed on possible charges • 4 counts of theft down to 1-2 counts of theft •Recommendation as to type of sentence • Happy with probation instead of jail time • Provincial instead of federal incarceration •Recommendation as to severity of sentence • Can be restricted to recommendations (I suggest 4 years –no I suggest 6 years. The judge has final authority and can overrule any sentence) Other benefits –the whats •Use of summary conviction procedure in hybrid offences • Restrict the authority of sentencing of the judge (lower maximum sentence than an indictable offence) •Promise not to apply for dangerous offender status –in terms of threats • In an indeterminate offence (someone who has done several serious crimes, it is up to the prosecutor in their discretion to go for a dangerous offender sentence after plea bargain has been made) •Promise not to apply for harsher penalty • For previous offences (i.e. drunk driving, if the prosecutor tells the judge there has been previous offences then the sentencing can be harsher...a way of being lenient  not letting the judge know something) •Promise not to charge • Promise not to go after family friends other offenders etc. •Promise not to note aggravated circumstances • Results in a lower sentence if the aggravating circumstances are not noted than it can lower sentencing • Previous recors or embarrassing aspects of crime at sentencing •Promise to speak to place of imprisonment or to treatment • “we recommend that the judge has this person sentenced to ___ so that they are closer to family...or this treatment program for ___alcohol etc.” •Promise/threat re using particular judge • Fairly open –some judges are known to be harsher on particular harsh on a decision, others are known to be understanding • Can get an agreement to go in front of a specific judge •Promise not to oppose bail release • Sometimes can take a long time to even enter a plea or a decision • The idea of not opposing to bail if they know you will plead guilty 3 types of bargaining: • Charge bargaining • Sentence bargaining Meant to gain plea bargaining, • Fact bargaining comes down to the fact of sentencing (lower sentence) Tacit Plea Bargains 2 points of contrast -do not need to talk about it on the essay for exam 1. Offer of leniency 2. Hard to determine degree of leniency • Tacit bargaining is judicial bargaining (the idea that a judge will give you a lesser sentence. Do not know if this works better than going to trial) o The idea of pleading guilty because you have the expectation to get something out of pleading guilty (want to benefit – giving a plea bargain for an expectation...it is different because there has been no negotiation....defence counsel think this. They think the judge will go easier on them if they do it themselves) o Spared the victim of coming forward to testify o Says you recognize you did wrong and are on the road of recovery o Offer of leniency is uncertain (a few studies have shown there is none) o Hard to tell if there is any leniency whatsoever (negotiation – there is certainty that there has been leniency present) Main advantage of PB (why do people plead guilty?) –the Whys of Plea bargaining •Administrative necessity o criminal legal system would come to a halt (principle argument in favour of plea bargaining) • Plea bargaining results to a high number of guilty pleas (9/10 guilty plea cases have resulted in plea bargaining in Ontario) o expedite justice • if we didn’t have it...would we still have guilty pleas? Hard to prove o need high level of guilty pleas •argument depends on p.b. resulting in high number of guilty pleas Problems of PB/GP ratio • if expect as part of system; then can become self perpetuating o Not give your guilty plea if you know you will get it (may have pled guilty even if you had no choice –it is there for everyone, people take advantage of it.) • Argued that accused are often over-charged in expectation of bargaining o Want to give bargaining chips to prosecutor to give a good deal (lay several charges when you know the court will not lay charges on every possible charge...this way giving more charges, you will get charged with something –need a system to get rid of those charges (i.e.PB)) • If you expect plea bargaining than you accept the necessity issue (see above) if you do not accept it then it is hard to argue in plea bargaining (because it is there, you will take advantage of it) Other Advantages: Accused •more lenient sentence I. Protection issue II. Possible lack of satisfaction III. Accused’s rehabilitation • Get less punishment (some people do not believe it, they believe you get more sentencing –phony process because of the artificial charges) •lighter label/less stigma • Sexual assault is lowered to assault or aggravated assault • Maybe the assaulter needs a treatment program (criticism) • Correctional authorities may not be aware of the seriousness –child offender, can be better with a label.
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