What is a "stipulation of facts?" (Regarding Sgt. Bergdahl court martial guilty plea)

Factual Questions
1

See query. This is how I encountered it today:

FORT BRAGG, N.C. (AP) — Army Sgt. Bowe Bergdahl told a military judge on Monday that he’s pleading guilty to desertion and misbehavior before the enemy.

“I understand that leaving was against the law,” said Bergdahl, whose decision to walk off his remote post in Afghanistan in 2009 prompted intense search and recovery missions, during which some of his comrades were seriously wounded…

It wasn’t immediately clear whether his defense has conceded that he’s responsible for a long chain of events that his desertion prompted, which included many decisions by others on how to conduct the searches. Despite his plea, the prosecution and defense have not agreed to a stipulation of facts, said one of his lawyers, Maj. Oren Gleich.

This indicates that they did not reach a deal to limit his punishment, and that he may be hoping for leniency from the judge,…

Is “stipulation of facts” post-confesssion a term of art of military justice only?

What’s the time line, then, criminal cases even in civilian life? I commit a crime, and confess up front, to the arresting office, to lawyers on both sides, to judges. fine. But the “acceptance” of that confession in the legal sense by other parties is a different matter. So what is being “accepted” that I am confessing to?

I understand what is being done by the simple meaning. It just sounds like something very abusable, at the very least, and, in its baldest application (which I am aware is not ever the case) spooky.

2

I’m not a lawyer, but…

A stipulation is an agreement between the two parties in a legal case to agree on one or more points (such as facts in the case.)

When you confess to a crime, you’re essentially testifying to certain facts that would mean that you committed a crime.

If the police are already investigating this case, their investigation would lead towards a set of facts that may or may not be identical.

If the prosecutor, starting from police facts, and your defense attorney, starting from your confession facts, can’t come to a stipulation agreement, that that may suggest to the prosecutor that you’ve made a false confession for one of a number of reasons; to hide the fact that you actually committed a much worse crime, to protect somebody else, or just because you have an irrational need for attention.

3

A similar case in civilian law might run something like this. I stab somebody in a bar fight who’s already been badly beaten, and confess to the stabbing. When that person dies, prosecution wants to go after me for murder. But my defense lawyer refuses to stipulate that death was a direct consequence of the stabbing, so even though I confessed to the stabbing, I didn’t confess to the murder.

As above, I’m still not a lawyer.

4

One example in the case I was on a jury for:

The prosecution wanted to enter the defendant’s cell phone as evidence.

(The defendant had been avoiding police questioning. When she was picked up at a traffic stop, she was taken to headquarters, but asked for the police to drive her car to the station. The cell phone was on the car seat in plain sight.)

The defense wanted to have people come in to testify on the chain of evidence – who had possession of the phone from the time it was found until it was entered into evidence. After a consultation, the defense made a stipulation that they’d accept that the chain of evidence was intact and would not waste time calling witnesses. (I believe that it had a caveat that if new evidence came to light, the stipulation could be vacated.)

It saved time (especially since the defense probably knew from the start they weren’t going to get their clients off – they had begged them to take a plea bargain, but to no avail).

5

It’s an agreement by both sides on certain facts that neither side is challenging. To use the Bergdahl example, presumably both sides are going to agree that Bergdahl was a member of the Army at the time of the incident, that he was assigned to a unit in Afghanistan, and that he was not present on duty for a period from June 30, 2009 to May 31, 2014. This stipulation of facts saves resources for both sides; they don’t have to produce documents and witnesses to prove these issues.

I’m just speculating here but the issue under contention may be whether Bergdahl had a premeditated plan to leave his unit or whether it was a spur of the moment decision he made right before he left. And there may be an issue over whether he intended to go to the Taliban or whether they captured him after he left his unit.

6

There are multiple different things that are being conflated here. This explanation is all US-based, and I’m more familiar with civilian trials than military. I may not be using the exact correct legal term in all cases (especially for military-specific stuff), but the basic idea should be right.

A confession can be done at any time to any person. I can confess to a crime to a family member, the police, a therapist, some dude I’m trying to impress, a reporter, or pretty much anyone. It’s just speech, may or may not be usable in court, and may or may not be taken seriously. “Acceptance” of a confession isn’t a particularly meaningful term.

A plea is telling a judge whether you accept the charges against you (guilty), require the state to prove them (not guilty) or something else like “I do not admit that I did it but do not contest being punished for the charges” (nolo contendere). Guilty and not guilty are always available, the ‘something else’ options vary a lot in different jurisdictions.

A judge must always accept a not-guilty plea, but for a guilty plea the judge will usually make sure the defendant realizes what he’s doing in a major case before accepting it. Pleading guilty on it’s own means that you don’t get a trial, and your sentence is entirely up to the judge and the law (or whatever authority handles sentencing), with the prosecutor typically asking for the harshest sentence available.

A plea bargain requires the prosecution and defense to agree on terms. The terms typically include a confession and guilty plea (or one of the special pleas) from the defendant, with a limitation on charges and sentence from the prosecution. (The judge also has to approve the plea bargain in the end, but usually only disapprove one in unusual circumstances). What the defendant agrees to confess as of a plea bargain is what they’re calling a ‘stipulation of facts’, and for major cases it will be done like a script, where the prosecution and defense lay out in writing what the defendant will confess to, then the defendant reads it out in court. If the defendant refuses to fulfil the conditions (say he gets to court and doesn’t want to say ‘I stabbed her’), then it typically voids the whole agreement. While plea bargains are common, it’s not required for a prosecutor to offer them, or for a prosecutor to act like one is in place if one isn’t agreed to.

So what’s happening is that Begdahl is going to the judge and saying “I want to plead guilty,” without any kind of plea bargain in place. Which means his sentence is entirely up to the judge, and could be anything up to life in prison since one of the charges is desertion. This is unusual for someone to do, because typically you either force the prosecutor to go to trial where you can defend yourself, either on real merits of the case or technical issues, or get some kind of deal limiting punishment. For example, Begdahl might have tried to get a deal where he limited punishment to the five year sentence that the lesser charge carries.

In a civil case this is like you were arrested for beating a guy to death in a fight, the prosecutor charges you with manslaughter, and you go to the judge and say “I did it, go ahead and sentence me to anything up to 20 years in jail the charge carries”. There would only be no ‘stipulation of facts’, that would only happen as part of a plea bargain. Confessing like this is unusual and bad for you as the defendant; typically you’d either plead not guilty, or reach a deal with the prosecutor. It’s possible if you were looking for a plea bargain (which Bergdahl has probably done) that you would go to the prosecutor and say “I’ll confess to ‘infliction of gross bodily harm’ and do five years for it if you drop the manslaughter charge and the chance of me doing 20”, but the prosecutor would say “No, you have to confess to ‘lesser manslaughter’ and do 10 years”, and you never reach an agreement. In that case if you go to the judge, there is no ‘stipulation of facts’ because you didn’t agree to anything, and the judge can sentence you to the full 20 years. You could also describe that as ‘the prosecutor didn’t accept my confession’ even though that’s not the legal terminology.

7

In a trial of any sort, the side with the burden of proof must establish through evidence all facts material to the conclusion they wish the finder of fact to reach. Thus, for a simple example, if you are being tried on a speeding violation, the prosecution must establish at a minimum that there was a car traveling at a speed in excess of the limit, and that you were the driver of said car. So they will put on the witness stand the officer who determined that you were speeding, and ask him a series of questions designed to establish how he knew the car was speeding, and how he determined that you, the person sitting in the courtroom, was the person behind the wheel.

Sometimes, there are a LOT of facts that need to be established to support a complaint/indictment/accusation. Each and every one of those facts has to be established as true. That can be tedious. And if you force the opposition to make the evidentiary showing of even the most trivial things, things you actually agree were true, you piss off the judge, the jury, and everyone else involved. And your opposition will be certain that the finder-of-fact knows exactly why the tedious presentation of evidence is occurring.

Thus, it behooves you to admit to everything that can easily be proved by the opposition. To do so, you stipulate that certain facts are admitted to be true by both parties. These stipulations get put into the record by the judge.

8

Often the defense will stipulate to a fact because letting the prosecution prove the fact will be highly prejudicial to the defense, beyond the expected prejudice of proving an element of the offense.

For example, in my jurisdiction, the Commonwealth must prove a victim suffered severe injuries and permanent and significant physical impairment when they charge “aggravated malicious wounding.” The defense can attempt to concede, to stipulate, that the injuries suffered were severe and that significant physical impairment occurred in an effort to avoid photos of horrible injuries being presented to the jury.

This doesn’t mean the defense must concede that the person on trial was responsible for the injuries, mind you – just that whoever beat the crap of that guy did so in ways that qualify as “severe.”

9

Reading between the lines in the OP, it seems that Bergdahl is saying he is prepared to plead guilty, but wants to limit what the prosecution can pin as blame on him - how intense the search was and as a result who got hurt, for example. The summary of what he says he did is presented to the judge(s) for a sentence. the worse that admission reads, the more likely he will receive a more harsh sentence. “I deserted” sounds a bit better than “I deserted and caused half the platoon to be seriously injured looking for me” when deciding sentence. (It also goes to the degree of responsibility). So this sounds more like the middle of plea bargain negotiations than a done deal.

That doesn’t sound like the best way to negotiate - “if you don’t waste an inordinate amount of my time negotiating, but instead go straight to a guilty plea, I will ask them to throw the book at you!” . I assume there are sentencing guidelines for assorted circumstances.

Plus, as part of a guilty plea the defendant must admit he did what he is pleading guilty to. As I understand it, if the defendant says “no I didn’t do it but I’m pleading guilty to get it over with…” then the judge will reject the plea.

10

When I was charged, I was asked if i would, at some time in the future, be pleading guilty or not-guilty.

It was purely a procedural question. The court wanted to know how much time to schedule.

And then we did something different on the day anyway.

After the verdict, there was still another set of facts which had not been tested, and which were not relevant to the verdict, but which were relevant to the penalty. I think that the magistrate could, in theory, have heard evidence about that. In the event, he took a verbal submission, which the prosecution agreed too.

11

[OP here]
Thanks all.

One forgets (meaning I forget) that, even without The American Way, justice and truth are not some kind of ideal to be explored and decided to an impossible certainty (unless You’re God, in which case present Company excepted), but a negotiation; expressed that way it sounds tremendously cynical, but in fact I mean it as a triumph of civil society.

The “spooky” part in OP is the “sign here where it says you’re guilty, we’ll fill in the rest” of the tyrant.

12

In tax law, which I am most familiar with, almost all the facts are stipulated in the cases I have to read for research. No one disagrees on much, if anything, about what happened, they just disagree as to how to apply the law in the given case. So cases I read quite often start off with a very long list of facts that are stipulated that cover pretty much everything that happened in the entire case that’s relevant, and then the court gives their opinion on how the law applies to those facts. That’s not to say that there aren’t tax cases where people disagree on the facts, but as a researcher those cases aren’t all that relevant since the ruling is less likely to be something that hasn’t been ruled on by the court before, as the main reason the parties are in court is to see that their version of the facts is the one that has to be accepted by the other party. I’m generally looking at cases where the IRS and the taxpayer disagree on what their jointly agreed pattern of facts means, and so there’s often some sort of precedence set that lets you know how the IRS will be forced to handle similar cases.

13

While the stipulation piece understanding from civilian criminal justice works for understanding there’s some other leakage from that civilian system that is in the thread where the differences matter. Some things that may not be clear, when considering civilian law, but are important to the actual case:

  • Prosecutors under UCMJ do not have prosecutorial discretion with regard to what charges are brought or plea deals. The parallel for discretion as to what charges and what level to pursue them at rests with the chain of command. In this case that was GEN Robert B Abrams*, FORSCOM Commander and court martial convening authority. Any plea deals would be between SGT Bergdahl and GEN Abrams not the prosecutor.
  • The article 32 hearing presiding authority "recommended that the charges be referred to a special court-martial and that a punitive discharge and confinement would be inappropriate given all the circumstances." That would have limited maximum punishments along with generally being seen as the equivalent of a misdemeanor conviction in the civilian system. GEN Abrams already chose to proceed with a general court martial after reviewing the Art. 32 finding and recommendations. Nothing has really changed in the case to make him change his mind with regard to how to proceed and the discretion is his.
  • Punishments are a lot less constrained under UCMJ than they are under civilian courts. There are very few mandatory minimum sentences under UCMJ. Neither of the charges Bergdahl faces have a minimum sentence. Pleading guilty to both charges, instead of just one, doesn’t necessarily increase how long Bergdahl ends up serving. He could still face a punishment that doesn’t even include imprisonment. It’s counter-intuitive if you are used to the civilian system and mandatory minimums.

Given the Art 32 recommendations, I’d be surprised if the punishment includes a lengthy imprisonment. I’d also be surprised if it goes past the 5 year maximum on the “lesser charge.” The court is going to see the same findings and hear the same arguments about mitigating circumstances.

    • In case anyone sees the name and wonders, yes he is related to that Abrams. He’s one of Creighton Abrams’ sons.
14

That’s not universally true - in some states that is forbidden by law, and in others it’s up to the judge, but it’s not a universal requirement. The Supreme Court has ruled that a plea of ‘guilty, but I didn’t actually do it, but if I plead guilty instead of not guilty I can’t get the death penalty so I’m pleading guilty’ is valid (see the Alford Plea info quoted from Wikipedia below). Also, it’s possible for someone to plead that they make no contest to the charges ‘nolo contendere’, which is explicitly a plea of ‘I don’t contest the charges but I didn’t actually do it’. Usually it’s up to the judge whether to accept this, and I don’t think it’s possible in all states, but it’s certainly possible to plead and does get accepted.

15

If I’m understanding it correctly, he’s conceding that he walked away, and that he knew it was illegal, but not that every bad thing the prosecutor says happened next is true and/or his fault, and that that means they’re still negotiating. Is that righr?

16

Given that rationale, would part of that stipulation–or is default by definition–be “plaintiff will not bring up in an attempt to prove the veracity of the characterization of said injuries the damn pictures?”

And can he show them for other reasons? (Leading to perhaps off topic on deals ahead of time on what evidence is introduced…If so, we can stick to “what is stipulatable.”)

17

He’s conceding that he is guilty of some of the crimes charged and not others. He can plead guilty to desertion while not actually agreeing on any of the facts.

18

Only relevant evidence is admissible.

Theoretically, if the defense stipulates that the injuries met the standard described in the law, then there’s no reason to admit the photos; they’re not relevant to prove any fact that the jury has to decide.