Rights Retained and Rights Forfeited in a Criminal Plea Bargain.

When exploring which constitutional rights a defendant retains and which rights a defendant forfeits in a plea bargain, the most striking right the defendant seems to enjoy is the right to have the state honor the plea agreement. In Santobello, Santobello was charged with two felony counts. [1] Santobello entered into a plea agreement with the prosecutor calling for Santobello to plead guilty to lesser counts with a stipulation that the prosecution would not make any recommendations as to the severity of the sentence.

However, when a new prosecutor took over the case, he recommended that the judge impose the maximum sentence. [2] The judge imposed the maximum sentence and Santobello moved to withdraw his guilty plea. Upon appeal to the United States Supreme Court, the court held that when the state does not honor a plea bargain, the resultant sentence must be “vacated and the state court must decide 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.” [3] In rendering its decision in Santobello, the court alluded to constitutional due process protections. Justice Marshall said it best when he stated, that “when a prosecutor breaks the bargain, he undercuts the basis for the waiver of constitutional rights implicit in the plea.” Because of this fact “the defendant has ample justification for rescinding the plea.” [4]

Then, under the sixth amendment, the defendant retains the right to have effective counsel during the plea bargaining and subsequent criminal justice processes. [5] In Kirby, the Supreme Court held that “the right to counsel attaches when charges have been filed and the defendant finds himself faced with prosecutorial forces and is immersed in the intricacies of substantive and procedural criminal law.” [6] Because the plea bargaining process usually results in the defendant’s admission of guilt and a waiver of certain constitutional rights, it is imperative that the defendant retains the right to effective counsel during the bargaining process. The defendant will need counsel to investigate and assess the defendant’s possible criminal liabilities in order for the defendant to make an “informed decision” related to his assent to the terms of any proposed plea bargain stipulations. [7]

Another constitutional right a defendant retains when he plea bargains is the right to be informed of exculpatory evidence. [8] This is an important right because evidence that may exonerate the defendant of guilt will surely impact the defendant’s plea bargaining power. This evidence will also influence his decision of whether to accept a plea bargain or go to trial. For instance, in Harris, the prosecution withheld evidence favorable to Harris in a case where he was charged with first degree sexual assault of a child. [9] The Wisconsin State Supreme Court held that the state violated Harris’s due process right to receive exculpatory evidence when it failed to timely disclose that the alleged victim reported being sexually assaulted by her grandfather on a different occasion and that Harris would not have plead guilty if he had know about this evidence.[10]

With respect to the rights a defendant forfeits when plea bargaining, while the defendant enjoys the constitutional right to be present at his own trial, the defendant does not have the right to be present during the plea bargaining process. [11] 

Other rights forfeited pursuant to a plea bargain include the right to a trial by jury, the right to confront one’s accusers and to present witnesses in one’s defense. [12] The fact that one pleads guilty negates the need for  a trial and unless there was actionable misconduct by the state necessitating the court’s ruling in favor of the defendant’s motion to withdraw the guilty plea, the guilty plea would stand. Because of this fact, a plea bargain is in essence a waiver of the defendant’s right to a trial by jury, the right to confront one’s accusers and to present witnesses in one’s defense. [13] Then, because the defendant must plead guilty and admit to committing the crime, the defendant forfeits the right to the right to remain silent. [14] Lastly, because the plea deal invokes a virtual waiver of all rights afforded to the defendant pursuant to a trial, the defendant also forfeits the right to be convicted by proof beyond all reasonable doubt.[15]

 [1] Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971).

[2] Id. at 259.

[3] Id. at 267.

[4] Id. at 268.

[5] U.S. Const. amend. VI.

[6] Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972).

[7] John L. Worrall, Criminal Procedure: From First Contact To Appeal 354 (2010).

[8] Id. at 354.

[9] State v. Harris, 680 N.W.2d 737, 272 Wis. 2d 80, 2004 W.I. 64 (2004).

[10] Id. at 87.

[11] Worrall, supra.

[12] Santobello, supra at 264.

[13] Id. 

[14] Id. 

[15] Id.