FWIW, my take on this is different from Gfactor’s and Campion’s. Mind, I’ve not researched the question, nor even anything similar. All I’m saying is that it doesn’t offend my sense of fair-play-and-decency to pay someone to take a lay-down in a criminal case. Maybe I feel that way because we’re assuming the defendant is guilty. Besides, what else is plea bargaining? Different result because a government official makes the bribe? If anything, I’m more inclined to believe that, if the defendant were to accept your bribe, it would be a free and consensual act.
In any event, I’ll be darned if I can figure out with what crime you could be charged. But that don’t mean there ain’t one.
Would it matter if the defendant was clearly guilty? No exculpatory evidence. No explanation of incriminating evidence. In essence a plea for nullification, or an effort to prolong the matter and make it as costly for as many people as possible?
What if the defendant pleads no contest instead?
How is it different from a prosecutor’s agreement to exercise discretion not to prosecute in exchange for a guilty plea? What if the evidence does not support the plea?
I’m not arguing with you, I’m trying to figure this out too.
Doesn’t this pretty much collapse into the question of whether it was legal? I know there are a some things that aren’t illegal that are still against public policy, but in this case, I think the questions I posed make it a little more complicated than that.
Again, what if the defendant pleads nolo, does that change the result?
The law in PA may be different. http://members.aol.com/RulesPA/Crim.Cp.5D.html (permitting written plea in guilty plea before district judge); Pennsylvania Code & Bulletin (not clear whether allocation is required because of reference to case in the reporter’s notes). Let’s take the perjury out of it, for the sake of argument, then.
Pleading guilty is a defendant’s privilege. It doesn’t constitute testimony. But see, http://72.14.207.104/search?q=cache:F9oqzv3_X-YJ:www.tdcaa.com/DocumentRoot/U.S.%20v.%20Massino-319%20F.%20Supp.%202d%20295.doc+guilty+plea+testimonial&hl=en&client=firefox-a (guilty plea is testimonial for confrontation clause purposes) (sorry in advance for the crappy link). But what if the defendant had previously planned to lie under oath or simply not testify. Instead the defendant pleads guilty. Was the testimony “influenced”? Or was the testimony a requirement of the guilty plea decision? Even if the defendant is innocent, I suspect it would be difficult to obtain a conviction under the statute. Again, the hypothetical payment seeks only to get the defendant to plead guilty, the testimony is an unintended consequence. What if I honestly didn’t know that allocution was required for a guilty plea? Is it sufficient that I am presumed to intend the natural and probable consequences of my actions, and that the legal requirement spells those out. My ignorance of the law can be no excuse, or can it? Even so, can I be said to have influenced the testimony, or merely to have caused it? What if I said, “I’ll pay you $150 if I don’t have to testify”? I’ve left it to the defendant to select the method. If he pleads nolo, I’m ok. If he pleads not guilty and if he is required to allocute and he didn’t do it and he says he did under oath, what have I done? Am I guilty of conspiracy to commit perjury? How about influencing testimony? Does it matter that there were completely legal ways in which the defendant could have kept our deal?
But if all the witness says is that the plea is voluntary, is the witness testifying falsely? Are plea bargains somehow more voluntary? Does it have something to do with the prosecutor approving the plea bargain? If so, what? Aren’t plea bargains often taken grudgingly? Does the fact that a plea is a grudging compromise make it involuntary? See generally, BYU J. Reuben Clark Law School (especially pp.203-204)
It just is, which is about the most unconvincing argument there is. This is somehow an emotional, rather than rational, reaction for me, which bears scrutiny. I suspect it stems from my belief that if the “system” is permitted to work, justice generally is done, so tampering with the system is bad.
The difference between the prosecutor offering a plea deal and vetbridge offering $150 is something I’m going to have to think about. Throwing in the nolo plea is interesting too, but would still require a trial, I think. So vetbridge has no incentive to offer cash for nolo, because he’s still going to have to take time off work to testify. So it either has to be cash for a guilty plea or cash to accept a plea bargain.
Yes, my argument regarding public policy was circular. Again, it’s emotional rather than rational.
In other words, the court will ask the defendant if any promises have been made, and the rule suggests that only plea agreement promises are legitimate. Plea agreements may only be made between the defendant and the prosecutor. See F. R. Crim. P. 11 (c)(1). The defendant will be under oath during the allocution. Rule 11(b)(1). And will have been specifically told that “the government’s right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath[.]” Id. Therefore, the defendant would have to perjure himself or testify truthfully and disqualify the plea deal.
Of course, this technical argument does not really explain the distinctions we were talking about.
Now I’m just confusing matters. As I said before, the defendant need not allocute when pleading no contest. OTOH, the judge must engage the defendant in a colloquy. Rules 11(b) and 11(c) deal with the issues that the judge must address during the colloquy.
This point really reduces all arguments to my point about unintended consequences. Any agreement that the defendant will plead a guily or nolo will require the defendant to either admit that he has been promised something illegitimate, or to commit perjury. If the offeror can be said to have intended this result, then the offeror’s conduct is illegal assuming:
The state has a statute similar to the one quoted by Campion; and
The defendant is in fact legally required to disclose any promises made regarding the plea.
Just wanted to comment on the superb quality of your second citation. Top notch!
This is the key issue.
The accused must reveal the deal during the colloquy, or perjure himself. Revealing the deal should cause the judge to reject the plea – remember that a court does not have to accept a nolo or even a guilty plea. Concealing the deal certainly amounts to obstruction of justice, and the act of paying someone else to obstruct justice makes you a principal in the first degree for that crime.
Is the colloquy (especially the part about revealing the plea) constitutionally required in state court? In other words, is there a chance that state procedures would not require the question about promises?
What if the offeror does not know that the question will be asked and does not suggest that the defendant conceal the plea deal?
Very unlikely. Each of the items mentioned in the colloquy is there to prevent a future challenge – that is, an attempt to withdraw a guilty plea after the fact. Leaving out the question about the voluntariness of the plea would be a gaping hole; it would allow a defendant to later claim that his plea wasn’t voluntary, an error of constitutional dimension.
I suppose that gets him off the hook for the conspiracy to commit perjury charge that would otherwise be possible. But he’s still entering into an agreement with someone with an ultimate end to obstruct justice.
The case of Commonwealth of Pennsylvania v Scuzzball Defendant was heard 11/15/05. Just thought I would update the thread for any and all interested parties. My thanks to samclem for allowing this old thread to be bumped.
I arrived early and had to wait a little as things were backed up. When the case was called in, I noticed that we were all sitting on the prosecution’s side of the room. The judge sent a clerk to look for the defendant, but he was not there. The judge suggested that we allow the defendant additional time. I registered my displeasure (sotto voce) and the judge took me aside for a short discussion. I told him how I had to miss half a day of work, juggle my schedule, yet I still managed to make it on time. He agreed, and called the case back in.
On hearing the evidence, the judge consulted a book, because he thought the charges should be ammended. The case had been filed as a Summary Case and he felt that it fit as a felony grade 3 (or C) if I heard correctly. The humane agent agreed with the ammendment. This part was interesting.
The defendant was found guilty. The fine was $1500.00, which (again if I heard correctly) was the maximum allowed. Defendant was ordered to pay restitution and was given 90 days in jail. The judge told me it was the first time he had given jail time for an animal abuse case!
Hizoner speculated that the defendant would likely be surprised when arrested, and warned us that he would probably obtain representation and appeal the verdict. He said that was why he was so careful.
I think many (but not all) are paid. At least, that’s what I’ve heard. Are you a professional witness or a regular guy who saw something?
I’d cop a plea to the mortgage company and see if they’ll give you an extension. Then ask the D.A. for some compensation. Or at least ask them what your options are.
I have been subpoenaed in an “open and shut” animal cruelty case. There is overwhelming evidence against the defendant. However, even if found guilty he will likely be fined a small amount (I speak from prior experience). If I approached the defendant, and offered him $150 to change his plea to guilty, would I be breaking the law? From my POV, I will be out over twice that amount by taking a day off of work and the fine is only going to be around three times that amount. The idea kind of reaks to me, but what law would I be breaking?
If #3 is not illegal, could I have my attorney make the offer, or would he be offended to be asked? He is a friend and I would not want to offend him.
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I think any sort of tampering with the potential outcome of a trial is a federal offense. I could be wrong, but I think the only people allowed to work deals with the BG is the DA.
4) If #3 is not illegal, could I have my attorney make the offer, or would he be offended to be asked? He is a friend and I would not want to offend him.
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I’d tap on the brakes as far as the whole tampering thing goes. You really don’t want to go there.
Veterinarian who witnessed the results of presumed abuse. If the defendant had a brain, he would have had an attorney who would have asked if I had any special training in forensics. My answer would have been no.
With all due respect, Kalhoun, I think vetbridge was just giving us an update on the actual trial. Several EsquiDopers already responded to the questions a month-and-a-half ago.
Thanks! Actually, this has been such a cool learning experience, that I am happy to be in it for the long-haul. Much of what I think happened at the trial may be incorrect, as I was eaves-dropping on conversation between the judge and others.
I was hoping to see Susan Dey, but she was absent:(
