Alford pleas
Bernie Cosell
dunk" cases end up with an "Alford plea". They always explain "the
defendant concedes that there is enough evidence to convict but still
denies their guilt" [or something like that]. Is the point to have some
bearing on an expected subsequent civil suit? I can see that pleading
guilty in the criminal case would make a defense against a civil suit a
little tricky, but if there *WAS* enough evidence, wouldn't that same
evidence be more than adequate for a civil case [where you need only
"preponderance"]?
Also: how is Alford different from a plea of No Lo Contendere?
Also: are defendants allowed to make up their own pleas [and so someday we
might see "The Jones Plea" and "The Newark plea", etc? I thought
[obviously incorrectly] that when the Judge asks how the defendant pleads
that the available vocabulary was fairly limited [like "guilty", "not
guilty" and "nolo"]
/Bernie\
--
Bernie Cosell Fantasy Farm Fibers
ber...@fantasyfarm.com Pearisburg, VA
--> Too many people, too few sheep <--
slide
> I've noticed recently in the local paper that a surprising number of "slam
> dunk" cases end up with an "Alford plea". They always explain "the
> defendant concedes that there is enough evidence to convict but still
> denies their guilt" [or something like that]. Is the point to have some
> bearing on an expected subsequent civil suit? I can see that pleading
> guilty in the criminal case would make a defense against a civil suit a
> little tricky, but if there *WAS* enough evidence, wouldn't that same
> evidence be more than adequate for a civil case [where you need only
> "preponderance"]?
>
> Also: how is Alford different from a plea of No Lo Contendere?
There is no difference between a nolo and a Alford plea when it comes to
the civil side. Neither can be used by the plaintiff to prove an act
occurred. Thus either plea will make it more difficult for a plaintiff
to succeed in a civil case subsequent to the criminal one.
My understanding is that the only difference between nolo and Alford is
that in Alford the defendant is claiming innocence while in nolo the
defendant isn't making any such claims. Instead he's only saying he
doesn't wish to contest the charges presented. Neither plea needs to be
accepted by the State or court.
>
> Also: are defendants allowed to make up their own pleas [and so someday we
> might see "The Jones Plea" and "The Newark plea", etc? I thought
> [obviously incorrectly] that when the Judge asks how the defendant pleads
> that the available vocabulary was fairly limited [like "guilty", "not
> guilty" and "nolo"]
>
Since Alford was a case roughly 60 years ago, I don't see that we are
having a rash of customized vanity pleas.
Mike Jacobs
> I've noticed recently in the local paper that a surprising number of "slam
> dunk" cases end up with an "Alford plea". �They always explain "the
> defendant concedes that there is enough evidence to convict but still
> denies their guilt" [or something like that]. �Is the point to have some
> bearing on an expected subsequent civil suit?
Yes. A guilty plea can be used in evidence, as an admission by the
civil defendant, in his subseqauent civil trial. An Alford plea,
even though resulting in conviction just the same, is not an
"admission" of guilt and thus cannot be used against him later.
>�I can see that pleading
> guilty in the criminal case would make a defense against a civil suit a
> little tricky,
Yes. Even with an admission (via guilty plea), that is still just
one more piece of evidence, not necessarily conclusive on the civil
jury. The plaintiff still needs to make out a prima facie case and
would be foolish to rely solely on the admission as evidence of civil
liability. But, it sure helps if plaintiff can get that guilty plea
shown to his jury.
> but if there *WAS* enough evidence, wouldn't that same
> evidence be more than adequate for a civil case [where you need only
> "preponderance"]?
Most likely. But, not a foregone conclusion. Why make it any easier
for the civil plaintiff than it has to be, is the reasoning behind an
Alford plea.
> Also: how is Alford different from a plea of No Lo Contendere?
They are synonymous IMO. Also, the same as a "no contest" plea
(which is just the English translation of Nolo Contendere).
> Also: are defendants allowed to make up their own pleas [and so someday we
> might see "The Jones Plea" and "The Newark plea", etc?
Well, Mr. Alford did - and apparently he (or his lawyer) was the first
one to think of it. And his judge accepted it. So, it got named
after him, just like scientific discoveries do. And, just like we
have "Miranda rights" and "Gideon rights" on the one hand, and the
"Twombly rule" and the "Iqbal rule" on the other. All those legal
principles got named after the litigants who first successfully (or
unsuccessfully) demonstrated them.
Thus, I suppose, conceivably, someone else in the future could cook up
a new plea that, upon reflection, the court would recognize as
Constitutionally permitted, and that defendant would then get that new
plea named after him. But, it's not so simple as just making up any
old plea you want, and having it accepted. 99.9999% of the time,
that ain't gonna fly.
> �I thought
> [obviously incorrectly] that when the Judge asks how the defendant pleads
> that the available vocabulary was fairly limited [like "guilty", "not
> guilty" and "nolo"]
So far, it is. An Alford plea, Nolo plea, and "no contest" are the
same thing.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Deadrat
news:ql42i5129ub79rq59...@216.168.3.66:
> I've noticed recently in the local paper that a surprising number of
> "slam dunk" cases end up with an "Alford plea". They always explain
> "the defendant concedes that there is enough evidence to convict but
> still denies their guilt" [or something like that]. Is the point to
> have some bearing on an expected subsequent civil suit? I can see
> that pleading guilty in the criminal case would make a defense against
> a civil suit a little tricky, but if there *WAS* enough evidence,
> wouldn't that same evidence be more than adequate for a civil case
> [where you need only "preponderance"]?
>
> Also: how is Alford different from a plea of No Lo Contendere?
It's "nolo contendere." Nolo is the first person singular present tense
of the Latin verb nolle (essentially ne volle = to not wish). Therefore
"nolo contendere" means "I don't wish to dispute." A plea of nolo
contendere means that the defendant is willing to accept the punishment
for the crime alleged while waiving trial and making no statement about
the government's case. As there is no admission of guilt or adjudication
of the facts, a nolo plea cannot be used against the defendant in civil
court. In an Alford plea, the defendant admits that the evidence is
sufficient to convict him beyond a reasonable doubt but still asserts his
factual innocence. An Alford plea is a guilty plea and may be used
against a defendant in a civil trial. As you noted, the plaintiff in a
case against the defendant need show only the preponderance of the
evidence in his favor, and the defendant has admitted that the evidence
would favor the plaintiff beyond a reasonable doubt.
Defendants use an Alford plea to avoid the risk of a harsher punishment.
In North Caroline in 1963, the eponymous Henry Alford, while protesting
his innocence, pled guilty to second degree murder to avoid a jury trial
for first degree murder. He was sentenced to 30 years in prison but
avoided the possibility of execution. Mr. Alford appealed his conviction
to the Supreme Court, claiming his plea was coerced by the threat of a
death sentence. The Court ruled in North Carolina v. Alford, 400US25
(1970) that such a plea is not coerced if the defendant makes an informed
and well-reasoned decision to minimize his risk of punishment.
An Alford plea raises a legal question because courts like to be
convinced that they actually have the guilty party. A guilty plea is
usually accompanied by a defendant's allocution, in which the defendant
outlines his crime and admits to his actions. Judges do not have to
accept such a plea if they think that the defendant is making a false
confession. So what's a judge to make of an admission in which the
defendant denies his guilt?
In a federal case, the Federal Rules of Criminal Procedure require the
gov to make an offer of proof to the court of the soundness of the case.
> Also: are defendants allowed to make up their own pleas [and so
> someday we might see "The Jones Plea" and "The Newark plea", etc? I
> thought [obviously incorrectly] that when the Judge asks how the
> defendant pleads that the available vocabulary was fairly limited
> [like "guilty", "not guilty" and "nolo"]
This type of guilty plea is known as an Alford plea after the 1970
Supreme Court case mentioned above. But only for purposes of discussion.
When the judge asks a defendant how he pleads, he says only "guilty."
When during allocution, the defendant says he didn't do it, the
newspapers report the use of an Alford plea.
>
> /Bernie\
Barry Gold
>I've noticed recently in the local paper that a surprising number of "slam
>dunk" cases end up with an "Alford plea". They always explain "the
>defendant concedes that there is enough evidence to convict but still
>denies their guilt" [or something like that]. Is the point to have some
>bearing on an expected subsequent civil suit? I can see that pleading
>guilty in the criminal case would make a defense against a civil suit a
>little tricky, but if there *WAS* enough evidence, wouldn't that same
>evidence be more than adequate for a civil case [where you need only
>"preponderance"]?
Very likely. Nonethless, a plea of "guilty" can be used in a
subsequent civil suit as "conclusive" proof that the defendant did the
act specified in the criminal charge, while a plea of "No Contest"
(aka Nolo Contendere) does not furnish such "conclusive" proof -- the
plaintiff would still have to bring forth evidence to prove their
case.
>Also: how is Alford different from a plea of No Lo Contendere?
Alford pleaded No Contest. See
http://en.wikipedia.org/wiki/Alford_plea
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Bob
<ber...@fantasyfarm.com> wrote:
>I've noticed recently in the local paper that a surprising number of "slam
>dunk" cases end up with an "Alford plea". They always explain "the
>defendant concedes that there is enough evidence to convict but still
>denies their guilt" [or something like that]. Is the point to have some
>bearing on an expected subsequent civil suit? I can see that pleading
>guilty in the criminal case would make a defense against a civil suit a
>little tricky, but if there *WAS* enough evidence, wouldn't that same
>evidence be more than adequate for a civil case [where you need only
>"preponderance"]?
>
>Also: how is Alford different from a plea of No Lo Contendere?
As far as I know, a guilty plea and a no contest plea are legally the
same. Normally, when a defendant pleads guilty, he admits to the
underlying facts. With an Alford plea (in California, it's called a
West plea - I don't know about other jurisdictions), he doesn't. I
don't know what the effect is on a civil case.
Bob
wrote:
>a plea of "guilty" can be used in a
>subsequent civil suit as "conclusive" proof that the defendant did the
>act specified in the criminal charge, while a plea of "No Contest"
>(aka Nolo Contendere) does not furnish such "conclusive" proof -- the
>plaintiff would still have to bring forth evidence to prove their
>case.
I'm not sure what you mean by "'conclusive' proof," but, in
California, a plea of no contest to a crime punishable as a felony is
admissible as a party admission against the defendant in a subsequent
civil action. Penal Code sec. 1016(3); see also Rusheen v. Drews, 99
Cal. App. 4th 279, 284 (2002).
Cy Pres
<ber...@fantasyfarm.com> wrote:
>I've noticed recently in the local paper that a surprising number of "slam
>dunk" cases end up with an "Alford plea". They always explain "the
>defendant concedes that there is enough evidence to convict but still
>denies their guilt" [or something like that]. Is the point to have some
>bearing on an expected subsequent civil suit?
I don't believe so, since in most cases, an Alford plea is treated as
a guilty plea for purposes of admission as evidence in a subsequent
civil case. There might be a difference if the issue is collateral
estoppel, i.e. is the defendant in the criminal case held to the
criminal court's factual findings in a subsequent criminal case?
Apparently, courts disagree. Examples: New York (yes). Washington
State (no).
But generally, the effect of an Alford plea is similar to or in some
respects worse for the defendant than a straight guilty plea. For
example, a defendant who maintains innocence while pleading guilty may
not be eligible for downward variation in sentencing based on remorse,
or eligible for parole, when remorse is part of the analysis.
Some defendants may take the Alford plea because they actually are
innocent, and do not want to be perjurers by pleading to each fact
necessary to a conviction. Some defendants may be concerned with
their reputations. For example, they are charged with some
particularly hideous crime and the sentence is extreme. While the
defendant believes a defense could be successful, a conviction would
lead to life in prison. This gamble just not being worth it, the
defendant pleads to a lesser offense, while maintaining innocence.
Whether guilty or not, it seems that benefits are primarily emotional
rather than practical, especially in jurisdictions where the two types
of plea are functionally identical. There are also significant
disadvantages to the plea if there is a possibility of harsher
sentencing or different treatment by parole or probation.
>I can see that pleading
>guilty in the criminal case would make a defense against a civil suit a
>little tricky, but if there *WAS* enough evidence, wouldn't that same
>evidence be more than adequate for a civil case [where you need only
>"preponderance"]?
It depends. It might not be that the evidence was really all that
overwhelming, but the penalties were so dire that the defendant was
simply terrified to roll the dice.
>Also: how is Alford different from a plea of No Lo Contendere?
There may be differences in how certain states treat such pleas for
purposes of admissibility as evidence in subsequent civil, criminal,
or administrative cases, or whether collateral estoppel applies. In
such cases, there might be no difference at all in practical effect.
The result may differ from state to state, or from federal circuit to
federal circuit (I haven't checked the latter).
>Also: are defendants allowed to make up their own pleas [and so someday we
>might see "The Jones Plea" and "The Newark plea", etc? I thought
>[obviously incorrectly] that when the Judge asks how the defendant pleads
>that the available vocabulary was fairly limited [like "guilty", "not
>guilty" and "nolo"]
A prosecutor and defendant may make any legally allowable agreement
between themselves, even if it is novel. A court may or may not
choose to accept such an agreement. If the type of agreement has some
advantage that makes it particularly appealing to some class of
defendants and/or prosecutors, it may be adopted by other courts. If
it becomes widely adopted, it is likely to be named after the case
where it was introduced or, depending, on the case which upheld its
legality.
[Note that while I've used the phrase "collateral estoppel"
throughout, there may be other applicable forms of issue preclusion I
haven't considered, and I think they'd be analyzed similarly.]
Deadrat
news:989c8e60-f5c3-4178...@f20g2000vbl.googlegroups.com:
> On Dec 10, 10:31�am, Bernie Cosell <ber...@fantasyfarm.com> wrote:
>> I've noticed recently in the local paper that a surprising number of
>> "slam dunk" cases end up with an "Alford plea". �They always explain
>> "the defendant concedes that there is enough evidence to convict but
>> still denies their guilt" [or something like that]. �Is the point to
>> have some bearing on an expected subsequent civil suit?
>
> Yes. A guilty plea can be used in evidence, as an admission by the
> civil defendant, in his subseqauent civil trial. An Alford plea,
> even though resulting in conviction just the same, is not an
> "admission" of guilt and thus cannot be used against him later.
I believe this to be untrue. An Alford plea is an admission that the
state's case is likely to prevail under the "beyond a reasonable doubt"
burden of proof. And that admission may be used in a subsequent civil
trial.
<snip/>
>> Also: how is Alford different from a plea of No Lo Contendere?
>
> They are synonymous IMO.
I believe this opinion is erroneous. A nolo plea by definition makes no
comment on the state's case; an Alford plea is a guilty plea.
> Also, the same as a "no contest" plea
> (which is just the English translation of Nolo Contendere).
>
>> Also: are defendants allowed to make up their own pleas [and so
>> someday we might see "The Jones Plea" and "The Newark plea", etc?
>
> Well, Mr. Alford did - and apparently he (or his lawyer) was the first
> one to think of it. And his judge accepted it. So, it got named
> after him, just like scientific discoveries do.
Mr. Alford plead guilty in 1963 to a plea-bargained charge of second-
degree murder. I don't think it was particularly unusual for a defendant
to grumble about being innocent while taking a plea bargain for a lesser
crime to avoid trial on a greater one. Especially when the defendant was
black in North Carolina in the sixties and facing the death penalty for
conviction at trial.
Mr. Alford (or his lawyer) was the first one to claim that such an
arrangent constituted judicial coercion. A federal appeals court agreed,
but the Supreme Court did not. This seven years after the original plea.
Mr. Alford's name became attached to his plea because his case (NC v
Alford) gave the Supreme Court's Constitutional approval to the
arrangement.
<snip/>
> Mike Jacobs
<snip/>
Deadrat
> Bernie Cosell <ber...@fantasyfarm.com> wrote:
>>I've noticed recently in the local paper that a surprising number of
>>"slam dunk" cases end up with an "Alford plea". They always explain
>>"the defendant concedes that there is enough evidence to convict but
>>still denies their guilt" [or something like that]. Is the point to
>>have some bearing on an expected subsequent civil suit? I can see
>>that pleading guilty in the criminal case would make a defense against
>>a civil suit a little tricky, but if there *WAS* enough evidence,
>>wouldn't that same evidence be more than adequate for a civil case
>>[where you need only "preponderance"]?
>
> Very likely. Nonethless, a plea of "guilty" can be used in a
> subsequent civil suit as "conclusive" proof that the defendant did the
> act specified in the criminal charge, while a plea of "No Contest"
> (aka Nolo Contendere) does not furnish such "conclusive" proof -- the
> plaintiff would still have to bring forth evidence to prove their
> case.
>
>>Also: how is Alford different from a plea of No Lo Contendere?
>
> Alford pleaded No Contest. See
> http://en.wikipedia.org/wiki/Alford_plea
In spite of a couple of poorly-worded sentences in Wikipedia, Alford
actually plead guilty to second-degree murder.
Cy Pres
<dryads...@xxxxyahoo.com> wrote:
>> Also: how is Alford different from a plea of No Lo Contendere?
>There is no difference between a nolo and a Alford plea when it comes to
>the civil side. Neither can be used by the plaintiff to prove an act
>occurred. Thus either plea will make it more difficult for a plaintiff
>to succeed in a civil case subsequent to the criminal one.
This is simply incorrect. In some states, both nolo and Alford pleas
are not only admissible as evidence that an act occurred, but have, in
fact, issue preclusion effects, i.e., they amount to proof and the
convict may not relitigate the issue in future cases.
In some states, such as South Carolina, nolo and Alford pleas are
treated considerably differently under the state's evidentiary rules.
For example, some rules specifically exclude nolo pleas from evidence
for some purposes (S.C.R. Evid. 410), while Alford pleas, not being
specifically excluded, are admissible as evidence. Meanwhile, other
rules specifically exclude both Alford and nolo pleas (S.C.R.Evid.
609).
While in some states, Alford and nolo pleas are functionally
identical, this just isn't true as a general rule.
Deadrat
news:uhp5i5honopk7i0f3...@4ax.com:
> On Thu, 10 Dec 2009 10:31:45 -0500, Bernie Cosell
> <ber...@fantasyfarm.com> wrote:
>
>>I've noticed recently in the local paper that a surprising number of
>>"slam dunk" cases end up with an "Alford plea". They always explain
>>"the defendant concedes that there is enough evidence to convict but
>>still denies their guilt" [or something like that]. Is the point to
>>have some bearing on an expected subsequent civil suit? I can see
>>that pleading guilty in the criminal case would make a defense against
>>a civil suit a little tricky, but if there *WAS* enough evidence,
>>wouldn't that same evidence be more than adequate for a civil case
>>[where you need only "preponderance"]?
>>
>>Also: how is Alford different from a plea of No Lo Contendere?
>
> As far as I know, a guilty plea and a no contest plea are legally the
> same.
They are not legally the same. The subsequent punishment is the same.
> Normally, when a defendant pleads guilty, he admits to the
> underlying facts.
And his culpability.
> With an Alford plea (in California, it's called a
> West plea - I don't know about other jurisdictions),
>From the California case People v West (1970) 3Cal.3d595.
> he doesn't.
Usually, he does. He just doesn't stipulate to his guilt
> I don't know what the effect is on a civil case.
The admissions may be used against the defendant in a civil court.
Cy Pres
>An Alford plea is a guilty plea and may be used
>against a defendant in a civil trial.
This statement is not a valid general rule. Different states, e.g.
Connecticut, treat the effects of an Alford plea differently. For
example, neither nolo nor Alford pleas may be used in a civil trial as
evidence of the factual basis of the criminal case, with some
exceptions.
There are exceptions to this, of course. For instance, clearly a
felon convicted after an Alford plea would be subject to a law making
it a crime to be a felon in possession of a firearm, and the previous
conviction would be evidence of that, since the underlying factual
basis of the previous conviction is not the relevant factor for the
felon-in-possession law, but the mere fact of conviction itself.
Similarly, evidence of conviction subsequent to an Alford plea might
serve as evidence of negligent hiring or retention of an employee, if
offered as evidence that the employer should have known, e.g., that an
employee convicted of DUI would not be a good choice as a driver.
>As you noted, the plaintiff in a
>case against the defendant need show only the preponderance of the
>evidence in his favor, and the defendant has admitted that the evidence
>would favor the plaintiff beyond a reasonable doubt.
The practical impact of what you say would be that the conviction
under the Alford plea would have collateral estoppel effect.
Connecticut and other states explicitly reject this view.
Cy Pres
<mjaco...@gmail.com> wrote:
>On Dec 10, 10:31�am, Bernie Cosell <ber...@fantasyfarm.com> wrote:
>> I've noticed recently in the local paper that a surprising number of "slam
>> dunk" cases end up with an "Alford plea". �They always explain "the
>> defendant concedes that there is enough evidence to convict but still
>> denies their guilt" [or something like that]. �Is the point to have some
>> bearing on an expected subsequent civil suit?
>Yes. A guilty plea can be used in evidence, as an admission by the
>civil defendant, in his subseqauent civil trial. An Alford plea,
>even though resulting in conviction just the same, is not an
>"admission" of guilt and thus cannot be used against him later.
This isn't correct. For instance, New York State not only admits an
Alford plea as evidence of the factual basis for the conviction, but
even gives it issue preclusion effect. Merchants Mut. Ins. Co. v.
Arzillo, 98 A.D.2d 495, 505 (1984).
>>�I can see that pleading
>> guilty in the criminal case would make a defense against a civil suit a
>> little tricky,
>Yes. Even with an admission (via guilty plea), that is still just
>one more piece of evidence, not necessarily conclusive on the civil
>jury. The plaintiff still needs to make out a prima facie case and
>would be foolish to rely solely on the admission as evidence of civil
>liability. But, it sure helps if plaintiff can get that guilty plea
>shown to his jury.
Certainly, where a plea is only admissible as evidence, the plaintiff
will want more, but if there is actual issue preclusion, for both an
Alford plea and a guilty plea, the defendant is foreclosed from even
litigating the issue.
>> but if there *WAS* enough evidence, wouldn't that same
>> evidence be more than adequate for a civil case [where you need only
>> "preponderance"]?
>Most likely. But, not a foregone conclusion. Why make it any easier
>for the civil plaintiff than it has to be, is the reasoning behind an
>Alford plea.
>> Also: how is Alford different from a plea of No Lo Contendere?
>They are synonymous IMO. Also, the same as a "no contest" plea
>(which is just the English translation of Nolo Contendere).
This is a common belief, but it is not true in all jurisdictions,
although some jurisdictions do treat them identically and (I haven't
checked) this may be true at the federal level.
>> �I thought
>> [obviously incorrectly] that when the Judge asks how the defendant pleads
>> that the available vocabulary was fairly limited [like "guilty", "not
>> guilty" and "nolo"]
>So far, it is. An Alford plea, Nolo plea, and "no contest" are the
>same thing.
This is also not true. Some states, as I point out in my previous two
posts which will probably appear the same day as this post, in fact
treat the nolo plea and the Alford plea differently, and for that
matter, the Alford plea and the straight guilty plea have practical
impacts on how a defendant is treated, which are generally unfavorable
to the defendant, e.g. possible ineligibility for downward sentence
departures based on remorse or taking responsibility for the offense,
or similar impacts on parole eligibility.
slide
> On Fri, 11 Dec 2009 07:23:30 -0700, slide
> <dryads...@xxxxyahoo.com> wrote:
>
>>> Also: how is Alford different from a plea of No Lo Contendere?
>
>> There is no difference between a nolo and a Alford plea when it comes to
>> the civil side. Neither can be used by the plaintiff to prove an act
>> occurred. Thus either plea will make it more difficult for a plaintiff
>> to succeed in a civil case subsequent to the criminal one.
>
> This is simply incorrect. In some states, both nolo and Alford pleas
> are not only admissible as evidence that an act occurred, but have, in
> fact, issue preclusion effects, i.e., they amount to proof and the
> convict may not relitigate the issue in future cases.
I disagree with your statement. My information is different from your
post and subsequent to your post, my searches agreed with my previous
opinion. I'd like to see your cites. Where I am, a nolo is not evidence
of negligence in a civil trial. The plaintiff must prove negligence (for
example) 'from scratch' rather than rely on the guilty plea as prima
facie evidence of the fact of the act.
Here is one of mine. It's Federal Rule 410 which I'm sure you can find.
While Rule 410 does not bind states, most states model their rules on
the Federal ones. If you have found one that doesn't in this case, then
you have, but that does not invalidate the general rule.
Here is a relevant quote from that Rule:
Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
Except as otherwise provided in this rule, evidence of the following is
not, in any civil or criminal proceeding, admissible against the
defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
....
Here is another source:
http://www.nolocontendere.org/differencebetweenguiltyandnocontest.html
The purpose of entering a no contest plea is often to avoid being sued
civilly for essentially confessing to a crime, which is the basis of a
guilty plea. If the no contest plea restricts someone from sueing you
civilly for an action, why would anyone enter a plea of �guilty� to
charges against them?
>
> In some states, such as South Carolina, nolo and Alford pleas are
> treated considerably differently under the state's evidentiary rules.
> For example, some rules specifically exclude nolo pleas from evidence
> for some purposes (S.C.R. Evid. 410), while Alford pleas, not being
> specifically excluded, are admissible as evidence. Meanwhile, other
> rules specifically exclude both Alford and nolo pleas (S.C.R.Evid.
> 609).
>
> While in some states, Alford and nolo pleas are functionally
> identical, this just isn't true as a general rule.
I never claimed that nolo and Alford pleas are treated differently nor
do I think so. The difference is solely that in the nolo the defendant
makes no representations of guilt or innocence - only that he chooses
not to contest the charges. In an Alford, the defendant is asserting his
innocence but does not choose to contest the charges.
For example, a judge may not accept a nolo plea when the defendant is
publicly decrying his innocence to the press but he may in the case of
an Alford plea.
Deadrat
news:pfv7i5hagjtouch8n...@4ax.com:
> On Fri, 11 Dec 2009 12:24:35 -0600, Deadrat <a...@b.com> wrote:
>
>>An Alford plea is a guilty plea and may be used
>>against a defendant in a civil trial.
>
> This statement is not a valid general rule. Different states, e.g.
> Connecticut, treat the effects of an Alford plea differently. For
> example, neither nolo nor Alford pleas may be used in a civil trial as
> evidence of the factual basis of the criminal case, with some
> exceptions.
It's certainly not a universal rule, and I should have been more careful.
Connecticut law flows from Lawrence v. Kozlowski, 171Conn705 (1976)
<snip/>
>>As you noted, the plaintiff in a
>>case against the defendant need show only the preponderance of the
>>evidence in his favor, and the defendant has admitted that the evidence
>>would favor the plaintiff beyond a reasonable doubt.
>
> The practical impact of what you say would be that the conviction
> under the Alford plea would have collateral estoppel effect.
I meant only to state the evidentiary effect of a guilty plea in a civil
action.
<snip/>
Cy Pres
>Bob <x...@xxx.com> wrote in
>news:uhp5i5honopk7i0f3...@4ax.com:
>>>Also: how is Alford different from a plea of No Lo Contendere?
>> As far as I know, a guilty plea and a no contest plea are legally the
>> same.
>They are not legally the same. The subsequent punishment is the same.
As far as the *criminal* justice system is concerned, in both a guilty
plea, an Alford plea, and a nolo plea, the defendant has agreed to be
treated as if he is guilty.
The subsequent range of possible punishments to which the defendant
may be subject is the same as if he had been convicted after trial.
However, it is not correct to say that the punishment is *the same*.
Someone might very well be punished *more* after an Alford plea.
In sentencing a defendant, a court looks at the range of punishments
and based on the facts of the case, can modify the sentence upward or
downward based on mitigating or aggravating factors, the economic
damages caused by the crime, prior offenses of the accused, etc. In
an Alford plea, the defendant will be unable to claim at least one of
these: remorse for the crime. The impact may be a longer sentence.
The sentence might also be shorter. After all, the subsequent trial
might have brought out all kinds of gory details which would have
enraged the jury (or even a judge) to want to really throw the book at
the defendant. If this stuff doesn't come out, the aggravating
factors may never become known to the fact finder.
>> With an Alford plea (in California, it's called a
>> West plea - I don't know about other jurisdictions),
>>From the California case People v West (1970) 3Cal.3d595.
>> he doesn't.
>Usually, he does. He just doesn't stipulate to his guilt
To the contrary, he actively maintains his innocence. The problem
with this from a jurisprudential standpoint is that it is
fundamentally alien to the concept of a "guilty" plea to allow someone
to maintain innocence while actually pleading guilty.
Generally, to make a guilty plea, one must testify to a "factual
basis" for the offense. I.e. on the night of November 5, I killed
Colonel Mustard in the study with a pool stick.
Sometimes, in an Alford plea, the prosecution or a witness instead
provides the "factual basis" by testifying that on the morning of
November 5, the police investigation found a pool stick with
Defendant's fingerprints on it lying next to the corpse of Colonel
Mustard, whose skull was bashed in consistent with being beaten by a
pool stick, and who was lying in a pool of blood, from which emerged
footprints consistent with the bloodstained Brunu Magli shoes found in
the closet of the Defendant, Professor Plum.
Nevertheless, many appeals of Alford pleas focus on the absence of a
factual basis for the plea. This is effectively the argument
preemptively rejected by the Supreme Court in Alford, although the
briefs of the parties in Alford barely mentioned the twist that Alford
had insisted on his innocence while pleading guilty.
The defense's main issue in appealing Alford was judicial coercion:
that a plea made only to avoid death, since the North Carolina statute
only made the death penalty available if the defendant pled not
guilty, was not an effective waiver of the right to trial.
>> I don't know what the effect is on a civil case.
>The admissions may be used against the defendant in a civil court.
And like other pleas which may be admitted as evidence, they may also
be excluded as unfairly prejudicial. Since they might also be
accorded less probative weight because of the nature of the plea, or
the availability of the defendants to be cross examined by the trial
court, a court might find an Alford plea's probative value to be
outweighed by its prejudicial effect where the same would not be the
case with a straight guilty plea (based on the tension between FREs
105 and 403 or their state equivalents).
Similarly, the admissibility of pleas (and convictions in general) is
also limited by the relevance to the case. If the civil case is about
the same nucleus of operative facts, a plea of any kind which results
in conviction is likely at least to be admissible, and in many states,
has issue preclusion effect--i.e. the party against whom it is offered
may not attempt to relitigate the issue and the plaintiff,
effectively, automatically wins on that fact. Where the issue is the
character of the defendant or his honesty, the pleas are less likely
to be admitted, especially if they are remote in time or place from
the case at bar.
Seth
Deadrat <a...@b.com> wrote:
> In an Alford plea, the defendant admits that the evidence is
>sufficient to convict him beyond a reasonable doubt but still asserts his
>factual innocence. An Alford plea is a guilty plea and may be used
>against a defendant in a civil trial. As you noted, the plaintiff in a
>case against the defendant need show only the preponderance of the
>evidence in his favor, and the defendant has admitted that the evidence
>would favor the plaintiff beyond a reasonable doubt.
But in a trial, the only opinion as to how good the evidence is that
matters is the jury's. The fact that the defendant _is_ the defendant
and hasn't just given the plaintiff whatever is asked for could be
considered proof, or at least evidence, that the defendant believes
the plaintiff might not be able to convince a jury.
Seth
Seth
Bernie Cosell <ber...@fantasyfarm.com> wrote:
>Also: how is Alford different from a plea of No Lo Contendere?
Nolo: I will not contest the charge, so you may treat me as if I were
guilty.
Alford: I am not guilty, but I don't believe I can convince a jury, so
you may treat me as if I were guilty.
The operative part is the same, in a criminal case. In a subsequent
civil suit, there could be a difference.
Seth
Bob
>As far as the *criminal* justice system is concerned, in both a guilty
>plea, an Alford plea, and a nolo plea, the defendant has agreed to be
>treated as if he is guilty.
>
>The subsequent range of possible punishments to which the defendant
>may be subject is the same as if he had been convicted after trial.
>However, it is not correct to say that the punishment is *the same*.
>Someone might very well be punished *more* after an Alford plea.
>
>In sentencing a defendant, a court looks at the range of punishments
>and based on the facts of the case, can modify the sentence upward or
>downward based on mitigating or aggravating factors, the economic
>damages caused by the crime, prior offenses of the accused, etc. In
>an Alford plea, the defendant will be unable to claim at least one of
>these: remorse for the crime. The impact may be a longer sentence.
If a defendant pleads guilty, it is generally because there is a plea
agreement, in which case the sentence has been agreed to by the
government and the defendant. Unless the trial court rejects the plea
agreement, which it has discretion to do under certain circumstances,
there's no range of punishment, but a stipulated sentence. See
generally In re Morgan, 506 F.3d 705 (9th Cir. 2007).
Deadrat
> In article <osydnZZhy8_-E7_W...@giganews.com>,
> Deadrat <a...@b.com> wrote:
>
>> In an Alford plea, the defendant admits that the evidence is
>>sufficient to convict him beyond a reasonable doubt but still asserts
>>his factual innocence. An Alford plea is a guilty plea and may be
>>used against a defendant in a civil trial. As you noted, the
>>plaintiff in a case against the defendant need show only the
>>preponderance of the evidence in his favor, and the defendant has
>>admitted that the evidence would favor the plaintiff beyond a
>>reasonable doubt.
>
> But in a trial, the only opinion as to how good the evidence is that
> matters is the jury's.
Hmmm. I'll say "Yes."
> The fact that the defendant _is_ the defendant
> and hasn't just given the plaintiff whatever is asked for could be
> considered proof, or at least evidence, that the defendant believes
> the plaintiff might not be able to convince a jury.
I'm sorry, but I have no idea what this means. I even tried to diagram
the sentence, but it defeated me. In my defense, one doesn't regularly
run into one sentence with four relative clauses containing a nominative
complement, an objective complement, a direct object, and an indirect
object.
So I'm reduced to repeating myself, something both my wife and readers of
this newsgroup are no doubt well-acquainted with.
In one (criminal) forum, the defendant himself has admitted that the
state can prove beyond a reasonable doubt that he stole the horse. This
will provide powerful evidence when the horse's owner sues the defendant
in another (civil) forum in which the plaintiff need only convince the
jury with a preponderance of the evidence that the defendant stole his
horse.
As the old joke goes, the jury may choose to disbelieve the defendant's
admission in criminal court and find against the plaintiff on the grounds
that the defendant is an admitted horse thief, and everyone knows that
horse thieves are consummate liars.
Nevertheless.
> Seth
>
Seth
slide <dryads...@xxxxyahoo.com> wrote:
>Here is another source:
>
>http://www.nolocontendere.org/differencebetweenguiltyandnocontest.html
>
>The purpose of entering a no contest plea is often to avoid being sued
>civilly for essentially confessing to a crime, which is the basis of a
>guilty plea. If the no contest plea restricts someone from sueing you
>civilly for an action, why would anyone enter a plea of �guilty� to
>charges against them?
How does a nolo plea restrict anybody from suing?
It (in some states) fails to _help_ them win, but they can sue whether
or not the plea is Nolo, Guilty, or Not Guilty (and in the latter
case, whatever verdict ensues).
Seth
Deadrat
> On Sat, 12 Dec 2009 14:13:25 -0600, Deadrat <a...@b.com> wrote:
>
>>Bob <x...@xxx.com> wrote in
>>news:uhp5i5honopk7i0f3...@4ax.com:
>
>>>>Also: how is Alford different from a plea of No Lo Contendere?
>
>>> As far as I know, a guilty plea and a no contest plea are legally the
>>> same.
>
>>They are not legally the same. The subsequent punishment is the same.
<snip/>
> The subsequent range of possible punishments to which the defendant
> may be subject is the same as if he had been convicted after trial.
Agreed. My phrasing is misleading.
> However, it is not correct to say that the punishment is *the same*.
> Someone might very well be punished *more* after an Alford plea.
<snip/>
> The sentence might also be shorter. After all, the subsequent trial
> might have brought out all kinds of gory details which would have
> enraged the jury (or even a judge) to want to really throw the book at
> the defendant. If this stuff doesn't come out, the aggravating
> factors may never become known to the fact finder.
The prosectuion probably throws in all the gory stuff anyway. More to
the point is that many Alford pleas are plea bargains, in which the the
defendant has traded his cooperation for a lesser-than-ordinary sentence.
>>> With an Alford plea (in California, it's called a
>>> West plea - I don't know about other jurisdictions),
>
>>>From the California case People v West (1970) 3Cal.3d595.
>
>>> he doesn't.
>
>>Usually, he does. He just doesn't stipulate to his guilt
>
> To the contrary, he actively maintains his innocence.
Sorry, but apparently I'm writing as badly as I can. The "just" is
misleading. The only thing the defendant disputes is his guilt. And, of
course, as you point out, he does this by claiming SODDI. But he doesn't
claim that the prosecution's witnesses have impaired vision or that the
crime lab is corrupt. Since these are exactly the kinds of issues that
triers of fact are supposed to weight, the judge could refuse to accept
the plea if he did so.
<snip/>
> And like other pleas which may be admitted as evidence, they may also
> be excluded as unfairly prejudicial. <snip/>
> Similarly, the admissibility of pleas (and convictions in general) is
> also limited by the relevance to the case.
I didn't mean to imply that Alford pleas don't have to comport with the
rules of evidence. But with the way, I'm writing, ....
Cy Pres
>> The practical impact of what you say would be that the conviction
>> under the Alford plea would have collateral estoppel effect.
>I meant only to state the evidentiary effect of a guilty plea in a civil
>action.
Issue preclusion is a much stronger effect, however. It takes the
issue entirely off the table, and evidence may not even be admitted in
order to disprove the factual basis of the conviction.
Cy Pres
<dryads...@xxxxyahoo.com> wrote:
>Cy Pres wrote:
>> On Fri, 11 Dec 2009 07:23:30 -0700, slide
>> <dryads...@xxxxyahoo.com> wrote:
>>>> Also: how is Alford different from a plea of No Lo Contendere?
>>> There is no difference between a nolo and a Alford plea when it comes to
>>> the civil side. Neither can be used by the plaintiff to prove an act
>>> occurred. Thus either plea will make it more difficult for a plaintiff
>>> to succeed in a civil case subsequent to the criminal one.
>> This is simply incorrect. In some states, both nolo and Alford pleas
>> are not only admissible as evidence that an act occurred, but have, in
>> fact, issue preclusion effects, i.e., they amount to proof and the
>> convict may not relitigate the issue in future cases.
>I disagree with your statement. My information is different from your
>post and subsequent to your post, my searches agreed with my previous
>opinion.
Perhaps your searches should have included case law, which describes
what courts actually do.
>I'd like to see your cites.
Here are some.
Matter of Adel, 41 A.D.2d 509, 510 (N.Y. 1984) (out of state
conviction pursuant to nolo plea admissible in delicensure matter);
Lloyd v. Card, 283 Fed. Appx. 696 (11th Cir. 2008) (nolo plea
collaterally estops relitigation of same factual issues in subsequent
1983 action); People v. Miller, 91 N.Y.2d 372 (1998) (Alford plea
admissible to impeach criminal defendant); McCombs v. Meijer, Inc.,
395 F.3d 346, 359 (6th Cir. Ohio 2005) (admission into evidence in
civil case of conviction pursuant to nolo plea not abuse of
discretion).
Quite convincing is this:
"In Matter of Cumberland Pharmacy v Blum, (69 AD2d 903, supra) we said
that 'nothing in People v Serrano (15 NY2d 304) or in North Carolina v
Alford (400 U.S. 25) suggests that if a guilty plea is accepted from a
defendant who does not expressly admit to the underlying facts, the
defendant is relieved of the civil consequences that flow from his
plea.' We held in that case that the defendant's 'guilty plea binds
[him] as strongly as any admission of the facts constituting the crime
charged'." Merchants Mut. Ins. Co. v. Arzillo, 98 A.D.2d 495, 505
(N.Y. App. Div. 2d Dep't 1984)
>Where I am, a nolo is not evidence
>of negligence in a civil trial.
This does not exactly contradict me. I do not contend that there are
no jurisdictions where Alford pleas are inadmissible. I contend only
that there are others where they are admissible.
I agree with you on the "general rule" that such pleas are not
admissible in civil cases, but consider it very important that there
are exceptions to this "general rule." Since this is a legal
newsgroup, I take umbrage at overgeneralizations that disregard what
might happen to real people in real cases if they unwisely apply the
"general rule" to their own jurisdiction.
Such people should, instead, take great care to find out what the law
in their own jurisdiction is.
>The plaintiff must prove negligence (for
>example) 'from scratch' rather than rely on the guilty plea as prima
>facie evidence of the fact of the act.
>Here is one of mine. It's Federal Rule 410 which I'm sure you can find.
>While Rule 410 does not bind states, most states model their rules on
>the Federal ones.
Most states do, indeed, model their rules on the federal rules, but
almost all states have some areas where they disagree with the federal
rules.
New York State, as a particularly striking counterexample, has not
only not rejected the federal rules, but in fact, continues to base
its standards for admission of evidence mostly on common law, although
federal rules have had some structuring influence on how courts think.
>If you have found one that doesn't in this case, then
>you have, but that does not invalidate the general rule.
Knowing the general rule is a good thing, but it's like knowing that
most land does not include land mines which explode when you step on
them. You're generally reasonable to assume there are no bombs on the
sidewalk as you walk from work to the subway, but if you're walking on
a minefield, the general rule might not apply.
Similarly, choosing the Alford plea as opposed to other pleas, based
on the notion that it won't be admissible in civil trials, may be
unwise depending on what jurisdiction you're in.
>Here is a relevant quote from that Rule:
>
>Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
>
>Except as otherwise provided in this rule, evidence of the following is
>not, in any civil or criminal proceeding, admissible against the
>defendant who made the plea or was a participant in the plea discussions:
>
>(1) a plea of guilty which was later withdrawn;
>
>(2) a plea of nolo contendere;
>....
You appear to have neglected to read the first words in the rule.
"Except as otherwise provided." Someone who relied on the general
proposition that Alford pleas could not be admitted for any purpose in
a civil trial might find themselves very disappointed with the bargain
they struck if their case actually fell within one of the exceptions.
Additionally, 410 only applies if the party against whom the evidence
is entered is also the party against whom it is used. Conceivably,
such evidence could be used *for* the defendant, thereby opening the
door to other evidence from the same source.
>Here is another source:
[It isn't binding authority on anyone though.]
>> In some states, such as South Carolina, nolo and Alford pleas are
>> treated considerably differently under the state's evidentiary rules.
>> For example, some rules specifically exclude nolo pleas from evidence
>> for some purposes (S.C.R. Evid. 410), while Alford pleas, not being
>> specifically excluded, are admissible as evidence. Meanwhile, other
>> rules specifically exclude both Alford and nolo pleas (S.C.R.Evid.
>> 609).
>> While in some states, Alford and nolo pleas are functionally
>> identical, this just isn't true as a general rule.
>I never claimed that nolo and Alford pleas are treated differently nor
>do I think so.
The "general rule," since you seem to like general rules, is that
they're treated identically. There are, however, exceptions, and
South Carolina is one. The analysis, based on South Carolina's
evidence rules (which follow the "general rule" you pointed out
earlier in that they are based on the federal rules), is from
>The difference is solely that in the nolo the defendant
>makes no representations of guilt or innocence - only that he chooses
>not to contest the charges. In an Alford, the defendant is asserting his
>innocence but does not choose to contest the charges.
What the Alford pleader does is admit that the government has
sufficient evidence to convict beyond a reasonable doubt. Also, while
it is possible that the fact of the plea itself might not be
admissible, the conviction which inevitably results from such a plea
might be admissible. One fairly obvious example of this is a
"negligent hiring" case, where a company hires a DUI convict to
operate a backhoe. The DUI convict had entered an Alford or nolo
plea. The company is shocked to find the conviction is admissible,
because to their surprise, FRE 410 does not apply. The evidence is
not entered against the defendant in the DUI case, but against them.
It is also not entered to prove the defendant in the DUI case actually
committed the crime, but instead, to prove that the corporate
defendant in the negligent hiring case should have been aware that the
employee was not to be entrusted with heavy equipment.
>For example, a judge may not accept a nolo plea when the defendant is
>publicly decrying his innocence to the press but he may in the case of
>an Alford plea.
There is no right to make an Alford plea, so the judge may, within
broad discretion, refuse to accept one without a sufficient factual
basis. It would also probably be within a court's discretion to
accept all kinds of pleas that nobody has thought of making yet.
Mike Jacobs
> slide �<dryadsdadx...@xxxxyahoo.com> wrote:
> >The purpose of entering a no contest plea is often to avoid being sued
> >civilly for essentially confessing to a crime, which is the basis of a
> >guilty plea. If the no contest plea restricts someone from sueing you
> >civilly for an action, why would anyone enter a plea of �guilty� to
> >charges against them?
>
> How does a nolo plea restrict anybody from suing?
I assume slide meant that the (criminal and potential civil)
defendant's nolo plea would restrict the available methods of proof
which a prospective civil plaintiff would see, beforehand, that he had
available and could possibly rely upon in _his_ trial _if_ he chose to
sue, and thereby the nolo plea could affect that plaintiff's decision
of _whether_ to sue or not. He would perhaps decide not to sue, if
the only available method of proof were too difficult, or not worth
the candle. The nolo plea deprives this potential plaintiff of an
easy method of factual proof of an essential element of his case.
> It (in some states) fails to _help_ them win, but they can sue whether
> or not the plea is Nolo, Guilty, or Not Guilty (and in the latter
> case, whatever verdict ensues).
True. The question is, whether or not the potential plaintiff will
_choose_ to sue, if the requisite proof of the civil claim is made
more difficult than it otherwise would have been. It is still his
own decision to make - he has not been _legally_ restricted or
prevented in any way from suing - but _factually_, the circumstances
of proof which the potential plaintiff must now contend with are more
constrained and limited than they otherwise would have been, if a
guilty plea had been entered in the criminal case.
slide
By making it more difficult, you hope to avoid the suit. I didn't say a
plaintiff was stopped from suing. My wording could have been better.
Cy Pres
wrote:
>In article <hg3b9e$12b$1...@news.eternal-september.org>,
>slide <dryads...@xxxxyahoo.com> wrote:
>>Here is another source:
>>http://www.nolocontendere.org/differencebetweenguiltyandnocontest.html
>>The purpose of entering a no contest plea is often to avoid being sued
>>civilly for essentially confessing to a crime, which is the basis of a
>>guilty plea. If the no contest plea restricts someone from sueing you
>>civilly for an action, why would anyone enter a plea of �guilty� to
>>charges against them?
>How does a nolo plea restrict anybody from suing?
It doesn't, another reason I find it difficult to take that source
very seriously. It's sloppily worded and misstates the law. It may,
however, have an impact on whether the fact of the nolo plea or
subsequent conviction is admissible as evidence. The general rule is
that it may not be admitted, but this varies from state to state, and
depending on the purpose for which the plea is offered as evidence,
and the party against whom it is offered, it may be admitted.
>It (in some states) fails to _help_ them win, but they can sue whether
>or not the plea is Nolo, Guilty, or Not Guilty (and in the latter
>case, whatever verdict ensues).
Correct. I suppose there might be some cases where someone decides
not to sue because they don't think they have enough evidence to win,
part of the reason for which is a nolo plea, but generally, people do
not plead if there is no evidence against them.
Cy Pres
>If a defendant pleads guilty, it is generally because there is a plea
>agreement, in which case the sentence has been agreed to by the
>government and the defendant. Unless the trial court rejects the plea
>agreement, which it has discretion to do under certain circumstances,
>there's no range of punishment, but a stipulated sentence. See
>generally In re Morgan, 506 F.3d 705 (9th Cir. 2007).
This is "sentence bargaining." Not all plea bargains stipulate a
sentence. Many criminal appeals involve claims that the sentence
received after a plea bargain is overly harsh and was a surprise to
the defendant. Sometimes, a defendant receives only an assurance such
as that the prosecution will not seek the death penalty.
I agree with you that it is true that when the parties stipulate to a
sentence, a judge may not capriciously or arbitrarily set this aside,
nor set it aside without adequately explaining the reasons for doing
so. Nor may the court, generally, accept the plea of guilty while
rejecting the sentencing and departing upward from an explicitly
stipulated sentence, since the defendant's bargain was to agree to
plead guilty in return for that stipulation.
Some stipulations I have seen did not stipulate a precise sentence,
but merely agreed as to an appropriate range and to facts relevant to
the presence or absence of aggravating or mitigating factors, the
amount of monetary damages caused by the crime, and other sentencing
guidelines-related issues.
I can't contest your statement that plea bargains usually stipulate an
exact sentence, having no contrary knowledge; but merely that a plea
bargain need not, by definition, include such a stipulation. I may
have misinterpreted what I've read on the subject, though.
Cy Pres
>Cy Pres <c.p...@yahoo.com> wrote in
>> And like other pleas which may be admitted as evidence, they may also
>> be excluded as unfairly prejudicial. <snip/>
>> Similarly, the admissibility of pleas (and convictions in general) is
>> also limited by the relevance to the case.
>I didn't mean to imply that Alford pleas don't have to comport with the
>rules of evidence.
If you had said that, I might agree. It seems fundamentally against
the nature of what a guilty plea is to plead guilty while maintaining
innocence. Indeed, the most common basis for an appeal from an Alford
plea conviction is the lack of a factual basis. The frequency of such
appeals might disincline a court to accept Alford pleas in general,
since a lot of the point of plea bargaining is moving cases down the
pike with finality.
Seth
Deadrat <a...@b.com> wrote:
>se...@panix.com (Seth) wrote in news:hg3imn$2bc$2...@reader1.panix.com:
>> In article <osydnZZhy8_-E7_W...@giganews.com>,
>> Deadrat <a...@b.com> wrote:
>>
>>> In an Alford plea, the defendant admits that the evidence is
>>>sufficient to convict him beyond a reasonable doubt but still asserts
>>>his factual innocence.
[subsequent civil case]
>> But in a trial, the only opinion as to how good the evidence is that
>> matters is the jury's.
>
>Hmmm. I'll say "Yes."
>
>> The fact that the defendant _is_ the defendant
>> and hasn't just given the plaintiff whatever is asked for could be
>> considered proof, or at least evidence, that the defendant believes
>> the plaintiff might not be able to convince a jury.
>
>I'm sorry, but I have no idea what this means.
I'll play the defendant. I made the Alford plea because I knew that
the corrupt police officer had several people who would lie on his
behalf, and that would suffice to convict me.
I then get sued over the issue.
I don't believe that the plaintiff in the civil case has access to,
and control over, the corrupt officer's perjurers, and therefore will
be unable to prove his case even to a weaker standard. (I believe
that the corrupt officer will only cooperate if he gets more money
than the case is worth.)
Therefore, I defend the case.
The fact that I chose to defend (which costs me attorney fees whether
I win or lose, plus damages and costs if I lose) rather than give up
(which costs me only damages) indicates that I believe that I have a
good enough chance of winning to risk the costs involved in the trial.
>In one (criminal) forum, the defendant himself has admitted that the
>state can prove beyond a reasonable doubt that he stole the horse. This
>will provide powerful evidence when the horse's owner sues the defendant
>in another (civil) forum in which the plaintiff need only convince the
>jury with a preponderance of the evidence that the defendant stole his
>horse.
I agree. It can be powerful evidence.
>As the old joke goes, the jury may choose to disbelieve the defendant's
>admission in criminal court and find against the plaintiff on the grounds
>that the defendant is an admitted horse thief, and everyone knows that
>horse thieves are consummate liars.
Or on any other grounds.
Seth
Mike Jacobs
> Correct. �I suppose there might be some cases where someone decides
> not to sue because they don't think they have enough evidence to win,
> part of the reason for which is a nolo plea,
Of course we don't have reliable statistics on the number of people
who chose _not_ to sue because of a nolo plea by the person they want
to sue. But the other aspect favoring such pleas (from the
defendant's perspective), is that it simply makes the plaintiff's
proof more difficult than it otherwise would have been. Rather than
having an essential element of the plaintiff's case already made for
him by the guilty plea, the potential plaintiff will have to marshal
his own evidence and prove up the case from scratch. While this may
not completely discourage most plaintiffs from suing, if they have
meritorious claims, it does give defendants 2 bites of the apple, and
does not preclude them from offering a vigorous defense on the merits
in the civil case where, perhaps, there is only money, not liberty, at
stake for the defendant - and probably an insurance company's money at
that, so the insurer is the one calling the shots about how much risk
of losing at trial they are willing to take upon themselves. The
nolo plea also may discourage nuisance suits, as well as legitimate
suits whose value is minor and therefore not worth the effort of full-
blown proof.
The risk-benefit calculus may incline a factually innocent defendant
in the criminal case to choose a nolo plea at either of the following
extremes:
(1) If faced with an extremely serious criminal charge, of which he is
factually not guilty of even committing the act (say, murder), he may
plead nolo to a lesser included charge on grounds the state had enough
evidence to prove that lesser charge (or in recognition that he was
facing an unfair process, such as Blacks often did in the
unreconstructed rural South - that was part of the situation faced by
the original Mr. Alford), in order to avoid more severe punishment -
while preserving his right to appeal based on actual innocence.
(2) If faced with a petty charge, perhaps a mere traffic violation
(e.g. speeding, running a red light), arising from being involved in a
collision that caused harm to a victim who is a potential plaintiff,
the defendant may want to preserve his right to fully contest the
civil charges of negligence that may be brought against him but may
feel that the cost (in time, money, inconvenience etc.) of pursuing a
full trial of the criminal traffic charge will not be worth it if he
can simply plead nolo, pay a relatively small fine, and move on.
> but generally, people do
> not plead if there is no evidence against them.
That is true, but admitting that there is evidence against him is
_not_ the same as admitting that what this evidence purports to prove
is in fact true. One need only look at the history of convictions
that get reversed on grounds of actual innocence - even where the
state _did_ have substantial and reliable (not concocted) evidence,
enough to convict - to admit that legal procedure does sometimes
result in the conviction of the wrong defendant. See, e.g. the
following article from Tuesday's Washington Post about a man convicted
of a 1981 rape and murder who was ordered freed based on DNA evidence
that another man committed the crime:
http://www.washingtonpost.com/wp-dyn/content/article/2009/12/15/AR2009121502360.html?wprss=rss_metro
The defendant taking a nolo plea is simply acknowledging the
procedural reality, not his actual guilt, especially if he is in fact
innocent _or_ if his lawyer believes the evidence the state is relying
upon is legally insufficient or should have been excluded and he wants
the chance to appeal that issue without subjecting his client to the
trauma of trial.
Presumably, his lawyer (if duly diligent) has already tried to get the
evidence suppressed at the trial level, or has moved for acquittal
based on insufficiency, and was not successful. In fact, one could
argue that the trial court's denial of a motion to acquit based on the
insufficiency of the state's evidence _is_ all the grounds one needs
to enter a nolo plea, which simply admits that (under the
circumstances _of_that_case_ which include the now-settled "law of the
case" just handed down by the court's opinion denying acquittal), the
state _does_ have enough evidence to survive a motion to acquit and to
get to the jury with their prima facie case.
That admission of sufficiency (by the nolo plea) says nothing (and
reveals nothing) about what factual _defenses_ the accused may have
offered, if the case went to trial; it refers only to the state's
prima facie case as being sufficient to get to the jury. This
situation can indeed co-exist with actual innocence, and I'm not going
to try to concoct a hypothetical example because such scenarios abound
in crime fiction as well as in the history of appellate reversals for
actual innocence. An innocent defendant faced with life in prison, or
a death sentence, may well think it the better part of valor to admit
that the state has enough evidence to send him to jail for a long time
before he is free again, rather than risk spending the entire rest of
his life (and perhaps cutting that short by zdeath) in prison.
Mike
> I'll play the defendant. I made the Alford plea because I knew that
> the corrupt police officer had several people who would lie on his
> behalf, and that would suffice to convict me.
>
> I then get sued over the issue.
>
> I don't believe that the plaintiff in the civil case has access to,
> and control over, the corrupt officer's perjurers, and therefore will
> be unable to prove his case even to a weaker standard. (I believe
> that the corrupt officer will only cooperate if he gets more money
> than the case is worth.)
>
> Therefore, I defend the case.
>
> The fact that I chose to defend (which costs me attorney fees whether
> I win or lose, plus damages and costs if I lose) rather than give up
> (which costs me only damages) indicates that I believe that I have a
> good enough chance of winning to risk the costs involved in the trial.
I'm not a lawyer (and thus why I'm asking) but couldn't it also be
possible, at least in some rare cases, that some particular evidence
would be allowed in the criminal case but not in a civil case? (or would
it always either be the other way around, where evidence is always
easier to get admitted in civil court, or possibly the case that
evidence is equally admissible in either one?)
>
>> In one (criminal) forum, the defendant himself has admitted that the
>> state can prove beyond a reasonable doubt that he stole the horse. This
>> will provide powerful evidence when the horse's owner sues the defendant
>> in another (civil) forum in which the plaintiff need only convince the
>> jury with a preponderance of the evidence that the defendant stole his
>> horse.
>
> I agree. It can be powerful evidence.
>
>> As the old joke goes, the jury may choose to disbelieve the defendant's
>> admission in criminal court and find against the plaintiff on the grounds
>> that the defendant is an admitted horse thief, and everyone knows that
>> horse thieves are consummate liars.
>
> Or on any other grounds.
Yeah, maybe the person saw the venue (say a black person being charged
in a court in Beverly Hills) and figured the jury would be prejudiced
against him from the start and figured he'd go ahead and plead "no
contest" but then the civil case was able to be moved to downtown LA
with a totally different jury makeup and they, overwhelmingly, found him
innocent. Not saying you'd always get a jury prejudiced in one way or
the other based on locale but I can see where a predominately black
community might be prejudiced in favor of a black defendant right after
the Rodney King fiasco or such.
Cy Pres
wrote:
>I'm not a lawyer (and thus why I'm asking) but couldn't it also be
>possible, at least in some rare cases, that some particular evidence
>would be allowed in the criminal case but not in a civil case? (or would
>it always either be the other way around, where evidence is always
>easier to get admitted in civil court, or possibly the case that
>evidence is equally admissible in either one?)
Yes. A lot of what determines whether evidence is admissible or not
is WHAT it is intended to prove, and HOW it proves that. For example,
take a nolo plea to some felony. Now, take the same convicted felon
and put him into two different cases. In the one case, the felon has
been caught with a firearm in a state where being a
felon-in-possession is a separate crime. The felony conviction is
almost certainly going to be allowed as evidence, because it is the
conviction itself which is the factual matter. The court doesn't care
about the underlying facts.
Take the same felony conviction, but now, the felony conviction, let's
say for aggravated assault, is being introduced into a negligent
hiring case to show that the employer should have known this employee
was dangerous and couldn't be trusted on the basis of the prior
conviction. Does it get in? Maybe.
Suppose the negligent hiring case alleged that the convicted felon
assaulted a customer of the employer, and in the same way as the
previous assault, i.e. a hair-trigger temper issue. Then, the
aggravated assault conviction is particularly relevant and even though
it might prejudice the jury against the defendant (the employer), it
is probably admissible.
Suppose, instead, that the negligent hiring case alleged that the
convicted felon committed fraud. In this case, the assault might not
be so relevant. How would that put an employer on notice that the
employee was dishonest?
Similarly, suppose the plaintiff in a libel suit tried to introduce
evidence of the conviction to prove that the defendant's testimony is
untruthful. How relevant is an assault conviction to someone's
honesty? Is someone who hit someone with a pool cue more likely to be
a liar? The relevance of the conviction is fairly low in this case.
Generally, admissibility of evidence is not complete. I.e. evidence
is not admissible merely for any possible purpose, but only for a
specific purpose. Criminal convictions are particularly limited in
how they may be used, and to some extent, nolo and Alford type pleas
even more limited, though the degree to which they differ varies
widely from state to state.
Mike
> I agree with you that it is true that when the parties stipulate to a
> sentence, a judge may not capriciously or arbitrarily set this aside,
> nor set it aside without adequately explaining the reasons for doing
> so. Nor may the court, generally, accept the plea of guilty while
> rejecting the sentencing and departing upward from an explicitly
> stipulated sentence, since the defendant's bargain was to agree to
> plead guilty in return for that stipulation.
I was under the impression that we had pretty well established in this
forum that a judge was under NO obligation at all to accept a plea
bargain nor, if accepting the guilty plea, under any obligation to go
along with the agreed-upon sentence. (But that if a judge DID, in most
cases, disregard the plea, then defendants would simply quit pleading
out so it's in the judge's best interest to accept it to help clear the
docket easier.) Now it might be different for a DA who says "plead
guilty to "murder 1" and I won't seek the death penalty. Maybe in that
case, there IS some sort of a contractual obligation on the part of the
DA. Or then again, maybe it's simply that a DA that randomly and
arbitrarily goes back on his word would also be seen as unreliable and
also have a hard time getting defendants to plead out.
Wasn't there a case that went all the way to SCOTUS that established
this very issue? (Basically where the defendant plead guilty, didn't
receive the expected sentence and wanted to withdraw the plea and SCOTUS
said what basically amounted to "no take-backs. You said 'guilty' in
open court and thus that's what you are."
Deadrat
news:c9a449e1-636c-4e80...@m38g2000yqd.googlegroups.com:
> On Dec 16, 3:37�pm, Cy Pres <c.p...@yahoo.com> wrote:
<snip/>
> The risk-benefit calculus may incline a factually innocent defendant
> in the criminal case to choose a nolo plea at either of the following
> extremes:
>
> (1) If faced with an extremely serious criminal charge, of which he is
> factually not guilty of even committing the act (say, murder), he may
> plead nolo to a lesser included charge on grounds the state had enough
> evidence to prove that lesser charge (or in recognition that he was
> facing an unfair process, such as Blacks often did in the
> unreconstructed rural South - that was part of the situation faced by
> the original Mr. Alford), in order to avoid more severe punishment -
> while preserving his right to appeal based on actual innocence.
Please forgive this historical aside about a peripheral issue. The unfair
adminsitration of justice was not restricted to the "unreconstructed rural
South," the legal environs of Yoknapatawpha County, if you will. Henry
Alford was indeed black, and he was indeed indicted in North Carolina. But
from cursory checking online, it seems that he was from Greensboro, a city
and not one with an "unreconstructed" mindset. In the year of Alford's
indictment, Greensboro actually repealed its laws mandating segregation for
residences and public accommodations.
Alford's predicament would not have been considered unusual were he to have
lived in Chicago.
<snip/>
> Mike Jacobs
<snip/>
Cy Pres
wrote:
>Cy Pres wrote:
>> I agree with you that it is true that when the parties stipulate to a
>> sentence, a judge may not capriciously or arbitrarily set this aside,
>> nor set it aside without adequately explaining the reasons for doing
>> so. Nor may the court, generally, accept the plea of guilty while
>> rejecting the sentencing and departing upward from an explicitly
>> stipulated sentence, since the defendant's bargain was to agree to
>> plead guilty in return for that stipulation.
>I was under the impression that we had pretty well established in this
>forum that a judge was under NO obligation at all to accept a plea
>bargain nor, if accepting the guilty plea, under any obligation to go
>along with the agreed-upon sentence.
This is *mostly* correct, but as with most things, *mostly* may not
apply to every case. I don't profess myself to be an expert in
criminal procedure, nor even particularly good at it.
However, this depends on what kind of sentence bargaining we have. If
the defendant agrees to plead guilty to some charges in return for
dropping others, and the agreement in return is that the prosecutor
will *recommend* a certain sentence, and then the judge disregards the
recommended sentence and then gives a guidelines sentence or, for that
matter, even departs upwards *or* downwards (such as giving a
suspended sentence where the prosecutor had recommended a guidelines
sentence), absent an abuse of discretion, there is no appeal available
to *either* side.
Further, neither side can claim the other side broke the bargain. The
agreement was that the prosecutor would *recommend* a certain range.
THe accused would *plead* to certain charges in return for dropping
others (with presumably higher sentences or worse penalties like
having to register as a sex offender). The judge *is* limited as to
the charges. If you plead to manslaughter and the prosecutor agrees
to drop murder, he can't suddenly find you pled guilty to murder and
sentence you to death.
>(But that if a judge DID, in most
>cases, disregard the plea, then defendants would simply quit pleading
>out so it's in the judge's best interest to accept it to help clear the
>docket easier.)
Yes, and this is why it is a common practice to accept such pleas as
long as the procedures do not clearly offend due process or are not
obviously corrupt. I.e. a prosecutor who is clearly "mobbed up" is
letting Vinnie the Enforcer plead guilty to disorderly conduct after
he whacks five people in a shopping mall, and only one of them was
even the guy he was after.
>Now it might be different for a DA who says "plead
>guilty to "murder 1" and I won't seek the death penalty. Maybe in that
>case, there IS some sort of a contractual obligation on the part of the
>DA.
Generally, for obvious reasons, death penalty cases are afforded
greater process, though I'm not sure they should be. Actually, I'm
pretty sure the death penalty shouldn't exist at all, but if it does
exist, life imprisonment with no possibility of parole is, to some
people, an even worse sentence. I think either kind of sentence
should be subject to a high level of appellate scrutiny and, in fact,
this is actually the case.
However, if a judge refused to agree to sentences and a defendant had
a competent lawyer who knew what the judge did, an attorney and a DA
could arrange a deal where, in return for a guilty plea to an offense
where the *feared sentence was not available at all*, the DA would
drop the rest, and then recommend the harshest sentence available for
manslaughter, or whatever crime didn't make life imprisonment or death
available. This would tie the hands of the judge, who would indeed
probably impose the maximum sentence, but whose hands would be tied as
to sentencing.
However, there's also another technique, known as the "conditional
plea," where a defendant pleads guilty subject to appeal on whatever
point it is that forced him (in his opinion) into the guilty plea. For
instance, to take a common example, suppose a drug defendant agreed to
plead guilty conditionally, based on a denial of a motion to suppress
evidence, which meant the seized drugs would be admitted into evidence
over a Fourth Amendment objection (or whatever state equivalent
applied).
Then the defendant could plead guilty, while appealing the order on
the motion to suppress, and withdraw the guilty plea if an appeal
reversed the admission of the evidence. Why would a prosecutor agree
to this? The prosecutor might lose. If the prosecutor agreed, it
would be because the prosecutor was pretty sure of winning the appeal.
Or possibly, in rare cases, there was some issue in the state of what
searches were actually legal, and the prosecutor would be glad to have
it resolved to avoid fighting about it in future cases, so the
prosecutor actually welcomed an appeal on the issue.
Generally, such a plea requires the consent of the other side (the
prosecution) and the court, too. But the result of rejecting such a
plea would be that it goes away.
Similarly, one could make a plea to a sentence conditional, i.e.
"sentence bargaining." The court could similarly reject such a
sentence bargain, and might be more likely to do so than with a charge
bargain, but the result would be that the whole plea was rejected. The
court could not say it accepted the plea agreement, but would
disregard the sentence agreement.
>Or then again, maybe it's simply that a DA that randomly and
>arbitrarily goes back on his word would also be seen as unreliable and
>also have a hard time getting defendants to plead out.
The DA could not plea bargain a sentence *recommendation* for the
minimum sentence and then instead recommend the maximum sentence. The
DA could, conceivably, upon discovering lies by the defendant, revoke
the plea agreement entirely, subject to court approval, and the result
would generally be that the case would proceed to trial, or else the
DA and defendant would reach another agreement, generally less
favorable to the defendant, who is now in a significantly worse
bargaining position.
>Wasn't there a case that went all the way to SCOTUS that established
>this very issue? (Basically where the defendant plead guilty, didn't
>receive the expected sentence and wanted to withdraw the plea and SCOTUS
>said what basically amounted to "no take-backs. You said 'guilty' in
>open court and thus that's what you are."
There are literally dozens of cases that went to the Supreme Court
involving plea bargains, the ultimate results of them, and what is
allowable and when, and what levels of due process are available, and
whether appeals may be pursued on direct appeal or via habeas petition
to federal courts, what people can agree to, and what the court may or
may not reject as a deal, and what reasons are acceptable, and what
standards of review apply to such trial court decisions, and whether
subsequent decisions by superior courts apply retroactively to past
cases or only apply to future cases, and all kinds of other technical
details.
The *general* rule this thread is about, though, is that prosecutors
and defendants can agree to anything *within their authority* to do,
and that courts can accept or reject anything that it is *within their
authority* to accept or reject. The boundaries are pretty fuzzy.
Yes, it is possible for a defendant to plead guilty to something in a
bad way due to incompetent counsel, and then receive a sentence that
shocks him, which he appeals and loses because with assistance of
counsel, he struck a crappy bargain. It's possible that crappy
bargain might be subsequently appealed through post-conviction relief
using an ineffective counsel defense, but there is plenty of perfectly
horrible defense counsel practice (even practice bad enough to result
in the disbarment of the attorney and subject the attorney to lawsuits
for malpractice) which yet does not entitle the defendant to
postconviction relief based on ineffective assistance of counsel.
Also, generally, ineffective assistance of counsel claims cannot be
pursued until after the *direct* appeal process is concluded and the
conviction is final, by which time, the defendant may have spent years
incarcerated.
But the kind of cases SCOTUS hands down on these issues are generally
very technical and very specific, and the questions are answered not
by general statements about what can and can't happen in a plea
bargain but things like: where are we in this case? what kind of
appeal is this? what did the parties actually agree to? could they
legally agree to that? did the court abuse its discretion? was
counsel's assistance ineffective? does the sentence itself offend due
process or cruel and unusual punishment? which state's laws impact
the evidentiary value of this conviction based on what kind of plea
this is? is this kind of plea even legal?
The list goes on and on. The issue isn't really "no take backs." It
is what did the person actually agree to when they said guilty? What
were they pleading guilty to? Did they waive their right to a trial
voluntarily and knowingly? Did they make their plea in return for a
specific sentence or did they make it in return for a prosecutorial
*recommendation*? Was the plea conditional? What were the
conditions? Could the court overrule them, accept the plea, and
impose its own sentence anyway?
The difficulties with these issues are why high-end criminal appellate
attorneys command very high hourly rates, and why the main crime in
the United States which is punishable by death is being too poor to
hire a good attorney while being accused of a heinous crime.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>On Fri, 18 Dec 2009 07:19:04 -0500, Mike <prab...@shamrocksgf.com>
>wrote:
>
>>I'm not a lawyer (and thus why I'm asking) but couldn't it also be
>>possible, at least in some rare cases, that some particular evidence
>>would be allowed in the criminal case but not in a civil case? (or would
>>it always either be the other way around, where evidence is always
>>easier to get admitted in civil court, or possibly the case that
>>evidence is equally admissible in either one?)
>
>Yes. A lot of what determines whether evidence is admissible or not
>is WHAT it is intended to prove, and HOW it proves that. For example,
>take a nolo plea to some felony. Now, take the same convicted felon
>and put him into two different cases.
Any comments on Mike's question? It's clear that there are
differences in different criminal cases. Does anyone know of a
category of evidence that would be admissible to prove X did Y in a
criminal case against X, but not in a civil suit against X for damages
resulting from X doing Y?
Seth
Seth
Mike <prab...@shamrocksgf.com> wrote:
> Now it might be different for a DA who says "plead guilty to "murder
>1" and I won't seek the death penalty. Maybe in that case, there IS
>some sort of a contractual obligation on the part of the DA.
No, there isn't. The Jonathan Pollard case is one example.
Seth
Cy Pres
wrote:
>In article <hgg1b1$37d$1...@news.eternal-september.org>,
It's one example of something completely different, since the
prosecutor, in fact, did *not* seek life imprisonment. It was the
judge who did not accept the prosecutor's recommendation and imposed a
life sentence.
Cy Pres
wrote:
>>Yes. A lot of what determines whether evidence is admissible or not
>>is WHAT it is intended to prove, and HOW it proves that. For example,
>>take a nolo plea to some felony. Now, take the same convicted felon
>>and put him into two different cases.
>Any comments on Mike's question? It's clear that there are
>differences in different criminal cases. Does anyone know of a
>category of evidence that would be admissible to prove X did Y in a
>criminal case against X, but not in a civil suit against X for damages
>resulting from X doing Y?
It's usually the opposite. The criminal defendant is afforded more
protections against prejudicial evidence than the civil defendant.
Therefore, more is likely to come in that would have been excluded in
a criminal case. I suppose there might be cases where there is one
rule in criminal cases and another rule in civil cases such that some
such evidence exists. I can't think of a particular category of such
evidence, though it is easy to imagine judges making contradictory
rulings in different cases about the same piece of evidence.
Cy Pres
<miatt...@gmail.com> wrote:
>On Dec 20, 6:43�pm, Cy Pres <c.p...@yahoo.com> wrote:
>> [given a certain situation] there is no appeal available
>> to *either* side.
>For the sake of clarity, you certainly don't mean that nobody can file
>and prosecute an appeal. I think what you mean is that there was no
>error unless the judge abused his discretion by departing from the
>guidelines. It's tautological (and a little silly) to say that absent
>an error there is no error to appeal.
Correct. This was poorly worded. "An appeal is not likely to
succeed" would have been a better way to say that, since obviously,
either side *can* file an appeal, with or without sufficient grounds
for relief.
Mike Jacobs
> Cy Pres <c.p...@yahoo.com> wrote:
> >Mike <prabb...@shamrocksgf.com> wrote:
>
> >>I'm not a lawyer (and thus why I'm asking) but couldn't it also be
> >>possible, at least in some rare cases, that some particular evidence
> >>would be allowed in the criminal case but not in a civil case? (or would
> >>it always either be the other way around, where evidence is always
> >>easier to get admitted in civil court, or possibly the case that
> >>evidence is equally admissible in either one?)
>
> >Yes. A lot of what determines whether evidence is admissible or not
> >is WHAT it is intended to prove, and HOW it proves that. For example,
> >take a nolo plea to some felony. Now, take the same convicted felon
> >and put him into two different cases.
>
> Any comments on Mike's question?
I thought that's what Cy Pres _did_. Do you mean, any _other_
comments?
> It's clear that there are
> differences in different criminal cases. Does anyone know of a
> category of evidence that would be admissible to prove X did Y in a
> criminal case against X, but not in a civil suit against X for damages
> resulting from X doing Y?
Here's one. Drunk driving, resulting in a crash injury to a 3rd
person, who sues the drunk driver that hit him.
The driver's drinking is certainly relevant to the charge of drunk
driving - it is an essential element of the State's case. The state
will call an expert toxicologist to testify to the defendant's blood
alcohol level, the method of testing it, etc. and perhaps include
evidence from the arresting cop regarding field sobriety tests he
administered (toeing a line, touching the nose, reciting numbers
backwards, etc) and the defendant's response as well as other signs of
intoxication (slurred speech, bloodshot eyes, smell of alcohol and so
on). The defendant knows all this, and pleads nolo as part of a plea
bargain to get a reduced sentence, perhaps to avoid jail time and just
get a fine and a license restriction.
Now, the injured third party sues. Is the drunkenness relevant?
Here, perhaps the defendant (same guy, in the civil case) will concede
negligence (on the advice of his lawyer) and defend only on the
grounds of (a) causation of the injury, and (b) extent and value of
the injury. Then, his drunkenness is NOT RELEVANT and no evidence of
it will be admissible in the civil case. UNLESS, if the defendant is
present and testifies as to how the crash happened, how it was just a
"minor tap" and not sufficient to cause plaintiff's injuries, or as to
what defendant saw plaintiff doing at the scene right after the crash
and how plaintiff appeared to be uninjured, walking around and bending
over to look at the damage to the cars, etc., THEN the drunkenness
becomes relevant TO THE ISSUE OF defendant's ability to accurately
_perceive_ sensory impressions while intoxicated, defendant's ability
to accurately _remember_ facts he saw while intoxicated, and so on.
This is called "opening the door" to allow all that bad stuff into
evidence - the plaintiff can't put it in until defendant raises some
issue that MAKES it relevant.
Barry Gold
>>
>>> Now it might be different for a DA who says "plead guilty to "murder
>>>1" and I won't seek the death penalty. Maybe in that case, there IS
>>>some sort of a contractual obligation on the part of the DA.
> se...@panix.com (Seth) wrote:
>>No, there isn't. The Jonathan Pollard case is one example.
Cy Pres <c.p...@yahoo.com> wrote:
>It's one example of something completely different, since the
>prosecutor, in fact, did *not* seek life imprisonment. It was the
>judge who did not accept the prosecutor's recommendation and imposed a
>life sentence.
That's because a "life sentence" is "within the range" of allowable
sentences for that crime (espionage). As usual, the judge has
discretion and does not have to follow the prosecutor's
recommendation. Qualitatively, it's the same as the prosecutor
recommending 5 years and the judge sentencing to 7, assuming both are
within the allowable sentence range for the crime.
AFAIK, the death penalty is special. For one thing, the SC has said
it's only for murder, not for lesser crimes. For another, there have
to be "special circumstances", which the prosecutor must charge and
prove. So if the DA doesn't charge the Special circumstances, there
would be no possibility of imposing the Death Penalty.
But perhaps the DA wants the "life imprisonment without parole" option
that _also_ comes with Special Circumstances in most states. SO the
def't has to plead guilty to the crime *and* the Special
Circumstances. But even there, there must be a _separate_ trial (with
the same jury) on the death penalty issue, during which the jury (or
judge acting as finder of fact) must decide whether the "aggravating
circumstances" presented by the prosecutor outweigh the "mitigating
circumstances" presented by the defense.
So, let's say the judge isn't disposed to accept the bargain of "life
without parole". The defendant pleads guilty to murder with special
circumstances, the DA does not ask for the death penalty, but the
judge says he wants to impose it. Well, there are a couple of
problems here:
1. If the judge comes right out and says, "I want to impose the death
penalty", the defense can probably get him removed from the case right
out of the box: obvious prejudice. And with the prosecutor supporting
that motion, it's hard to see the chief judge of the court refusing
it, or an appellate court turning it down.
2. OK, the judge says, "I want to hear evidence on the issue of
penalty". The second trial opens, and the prosecution (per its
agreement) rests its case without presenting any evidence. The
defense puts on a few witnesses about the defendant's awful childhood
and/or good works he's done before the crime. At that point, the
weight of the evidence is clearly on the defendant's side, and if the
judge imposes the death penalty anyway, the defense can appeal on the
ground that his verdict is clearly contradictory to the evidence.
3. AFAIK, imposing the death penalty _always_ requires a jury trial.
SO the judge can't do it on his own. And I'm not sure the judge can
even _schedule_ that trial without the prosecutor requesting it first.
If he does, the prosecutor can use technique 2 to make sure the
outcome is right.
In practice, if the judge doesn't want to go along with the bargain of
"no death penalty", his only real choice is to reject the _whole_
bargain, including the guilty plea. _That_ is within his discretion.
If he rejects the plea bargain, he can then schedule a full-blown
trial, and I guess all bargains are null: the prosecution can present
all its evidence, the defense can present theirs, and the jury
decides.
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Cy Pres
<miatt...@gmail.com> wrote:
>On Dec 21, 1:24�pm, se...@panix.com (Seth) wrote:
>> No, there isn't. �The Jonathan Pollard case is one example.
>What was the breach by the DA in that case that was not remedied by
>the court?
The prosecutor did not breach, despite having made claims that
Pollard, himself, had breached the agreement by giving a press
interview in which, the prosecutor contended, he disclosed further
sensitive information. However, the prosecutor still adhered to the
agreement and did not recommend life imprisonment but merely a
substantial term of incarceration. The judge disregarded the
prosecutor's recommendation and imposed a life sentence.
It is possible that the prosecutor would have been justified in
outright revoking the plea agreement due to breach of its terms,
but in this case, the prosecutor did not breach, and the judge was not
bound by the terms of the agreement.
Cy Pres
<miatt...@gmail.com> wrote:
>What was the breach by the DA in that case that was not remedied by
>the court?
To follow up to myself, the breaches *alleged* by Pollard were that
the prosecutor improperly referred to a press interview given by
Pollard while the case was pending as a breach, thereby the prosecutor
breached the agreement. Since Pollard clearly did breach the
agreement, this argument is silly.
Additionally, Pollard alleged the prosecution's tone was too harsh at
sentencing, and that "according to defendant, the Government failed to
limit its statements to the facts and circumstances of defendant's
crimes, and failed to advise the Court adequately of defendant's
cooperation." United States v. Pollard, 747 F. Supp. 797, 802 (D.D.C.
1990).
Pollard's own more recent brief is available at: 2005 U.S. Briefs
1013C, 2006 U.S. S. Ct. Briefs LEXIS 985 (U.S. Feb. 8, 2006).
At least one judge in the appeals process has agreed with Pollard's
claims of breach. United States v. Pollard, 959 F. 2d 1011, 1034
(D.C. Cir. 1992) (Williams, J., dissenting). The other courts
upholding the plea do not, in my brief look at them, expressly reject
that there was a breach, but neither do they find that justice was
disserved by the sentence.
As for the prosecution reacting to Pollard's own breach and raising
the issue at the sentencing phase, Pollard had only himself to blame
for arrogantly disregarding the terms of his plea agreement when
already facing a substantial prison term.
Seth
What the prosecutor promised, and what he did, are extremely
different. He did not keep his promise. It wasn't an issue of what
sentence he asked for, but included such things as breaking promises
about what documents would be used.
Seth
Cy Pres
wrote:
>What the prosecutor promised, and what he did, are extremely
>different. He did not keep his promise. It wasn't an issue of what
>sentence he asked for, but included such things as breaking promises
>about what documents would be used.
No appeals court to date has found that the agreement was breached by
the prosecutor and, in fact, each court has found that the agreement
was breached by Pollard. Nevertheless, the prosecutor did *not*
request life imprisonment and, in fact, every subsequent court to look
at the case has held so. Nowhere in the government's sentence
memorandum is a life sentence requested.
As for the other material, the government agreed to report to the
court the extent of the defendant's cooperation. Well, the defendant
did not cooperate and in fact, substantially breached the agreement.
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Dec 21, 1:00 pm, se...@panix.com (Seth) wrote:
>> Cy Pres <c.p...@yahoo.com> wrote:
>> >Mike <prabb...@shamrocksgf.com> wrote:
>>
>> >>I'm not a lawyer (and thus why I'm asking) but couldn't it also be
>> >>possible, at least in some rare cases, that some particular evidence
>> >>would be allowed in the criminal case but not in a civil case? (or would
>> >>it always either be the other way around, where evidence is always
>> >>easier to get admitted in civil court, or possibly the case that
>> >>evidence is equally admissible in either one?)
>>
>> >Yes. A lot of what determines whether evidence is admissible or not
>> >is WHAT it is intended to prove, and HOW it proves that. For example,
>> >take a nolo plea to some felony. Now, take the same convicted felon
>> >and put him into two different cases.
>>
>> Any comments on Mike's question?
>
>I thought that's what Cy Pres _did_. Do you mean, any _other_
>comments?
Well, he commented on a side issue (as I saw the question): Mike asked
whether something could be admissible in a criminal trial but not a
civil suit, and Cy gave examples where something would be admissible
in some criminal trials but not other criminal trials. So, while
interesting and informative, it didn't answer the specific question.
>> It's clear that there are differences in different criminal cases.
>> Does anyone know of a category of evidence that would be admissible
>> to prove X did Y in a criminal case against X, but not in a civil
>> suit against X for damages resulting from X doing Y?
That's why I rephrased the question to make it clear.
>Here's one. Drunk driving, resulting in a crash injury to a 3rd
>person, who sues the drunk driver that hit him.
>
>The driver's drinking is certainly relevant to the charge of drunk
>driving - it is an essential element of the State's case.
>Now, the injured third party sues. Is the drunkenness relevant?
>Here, perhaps the defendant (same guy, in the civil case) will concede
>negligence (on the advice of his lawyer) and defend only on the
>grounds of (a) causation of the injury, and (b) extent and value of
>the injury. Then, his drunkenness is NOT RELEVANT and no evidence of
>it will be admissible in the civil case.
Thank you. I hadn't thought of that, and it does provide a clear
example.
Seth