LAWS 2301 Lecture Notes - Lecture 11: Formal System, Indictable Offence, Sexual Assault

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6 May 2012
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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
oPB is the most commonly used
Express Plea Bargains:
3 constant elements:
oAlways a guilty pleas
oBargain 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
oBargain is result of express negotiations
Variable elements:
oWhere/when? –often just before trial (last minute deals) –it
can be done anytime up to an entering of decision
oWith 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
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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)
oWhy? =advantages
oWhat?
Benefits most often given (4 main ones, most often given in exchange)
•Reduction in charge –to a lesser or included o!ence
i.e. sexual assault to assault
2nd 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 o!ences
Restrict the authority of sentencing of the judge (lower
maximum sentence than an indictable o!ence)
•Promise not to apply for dangerous o!ender status –in terms of
threats
In an indeterminate o!ence (someone who has done
several serious crimes, it is up to the prosecutor in their
discretion to go for a dangerous o!ender sentence after
plea bargain has been made)
•Promise not to apply for harsher penalty
For previous o!ences (i.e. drunk driving, if the prosecutor
tells the judge there has been previous o!ences 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 o!enders etc.
•Promise not to note aggravated circumstances
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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
Fact bargaining
Tacit Plea Bargains 2 points of contrast -do not need to talk about it on
the essay for exam
1. O!er 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)
oThe 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 di!erent
because there has been no negotiation....defence counsel
think this. They think the judge will go easier on them if they
do it themselves)
oSpared the victim of coming forward to testify
oSays you recognize you did wrong and are on the road of
recovery
oO!er of leniency is uncertain (a few studies have shown
there is none)
Meant to gain plea bargaining,
comes down to the fact of
sentencing (lower sentence)
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