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  • Breann Bell

The unruly world of pleas: Ethics in plea bargaining

Updated: Oct 19, 2023

Once a frowned-upon practice thought to impede the truth-seeking function of the justice system, plea bargains have become the system. Accounting for the vast majority of resolutions, plea bargaining has displaced trials with nearly allcriminal cases at the state and federal level—more than 94% and 97% respectively—being resolved with a plea agreement. As noted by Justice Kennedy in the majority opinion of Lafler v. Cooper, “the reality [is] that criminal justice today is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 566 U.S. 156, 170 (2012). The Supreme Court has never ruled the waiver of rights in plea bargains unconstitutional – in fact, the Supreme Court has repeatedly held that a criminal defendant may waive constitutional rights so long as the waiver meets specific requirements. See United States v. Mezzanatto, 115 S. Ct. 797, 801 (1995); Tollett v. Henderson, 411 U.S. 258, 267 (1973); Blackledge v. Allison, 431 U.S. 63, 71 (1977, cert. denied, 116 S. Ct. 548 (1995). Plea bargains by nature require a defendant to waive three constitutional rights: the right to a jury trial, the right to confront witnesses, and the right against self-incrimination. See U.S. Const. amend. V; U.S. Const. amend. VI. But see North Carolina v. Alford, 400 U.S. 25, 38 (1970) (establishing that a defendant can knowingly and voluntarily enter into a plea agreement while maintaining his innocence). However, a prosecutor’s ethical responsibilities span beyond the statutory and constitutional rights of a defendant.

While there are several ethical concerns regarding plea bargains – whether a plea agreement should be deduced in writing, how much a prosecutor needs to investigate prior to offering a plea agreement and whether wired plea agreements are ethical – there are no model rules concerning plea bargaining practice. Recently, however, the ABA has voiced concerns over several practices, including prosecutors refusing to negotiate with a defendant until he waives his right to counsel, failing to make clear to the defendants that they have a right to counsel, or failing to investigate the charges brought before them. While other rules can address several of the concerns in the ABA’s Model Rule of Professional Conduct, there remain many other ethical questions where further guidance is needed.

For example, in prosecution offices across the nation, federal prosecutors previously included provisions in plea agreements requiring defendants to waive their right to appeal based on a claim of ineffective assistance of counsel. Although the Model Rules of Professional Conduct Rule 1.7 states “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest” and many states have adopted similar language, this waiver was still included in plea agreements. It remained in place until there was a policy change directing prosecutors to no longer include ineffective assistance of counsel waivers in plea agreements. While a majority of state bar associations have also found this practice unethical, there are still jurisdictions that allow prosecutors to include such a waiver and defense attorneys to counsel their clients on this issue.

Although prosecutors have rectified certain ethical concerns, there remain ethical issues, such as investigating charges prior to a resolution of the case. A prosecutor has a duty to ensure there is probable cause to support a charge under Rules 1.1 (competence), 1.3 (diligence) and 8.4(d) (misconduct). Probable cause is a low standard in comparison to the beyond a reasonable doubt standard needed to convict someone at trial. The question is then, does a prosecutor have a duty to investigate the charges beyond meeting the probable cause standard before offering a plea agreement, in order to fulfill their duty to seek justice and further comply with Rule 8.4(d)—to not “engage in conduct that is prejudicial to the administration of justice.” The ABA Standards of Criminal Justice Relating to the Prosecution Function Rule 3-1.2 notes that “[t]he primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.” “The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.” (emphasis added). Can a prosecutor truly protect the innocent without conducting further investigation beyond the probable cause standard needed to bring the charges, especially knowing that when faced with the undue pressures of a plea deal many innocent people will take the deal rather than run the risk of trial?

Today, although plea bargaining accounts for most resolutions in criminal cases, the Model Rules of Professional Conduct do not contain any rules that specifically address conduct related to plea agreements. This leaves ethical decisions in the hands of prosecution offices, as most of what occurs during the plea-bargaining process occurs outside of the view of judicial oversight. When ethical questions are left to individual prosecutors or prosecutor offices, it leaves ethical problems unchecked and criminal defendants to live with the consequences.


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