Schehr on Indictment Standards, Plea Bargaining, and Innocence

Friday, August 24, 2018

 

This article addresses two fundamental principles directly affecting plea convictions – the standard of proof required for indictment, and the presumption of innocence. In grand jury states, prosecutors procure indictments with ease. This, accompanied by the lack of a robust pretrial presumption of innocence, increases the likelihood of wrongful conviction. Therefore, it is my opinion that in order to maintain justice for an accused, contemporary criminal procedure must return to the proof beyond a reasonable doubt standard to indict. It is for precisely these reasons that this standard was originally adopted by our nation’s founding judges. Concerns about prosecutorial overreach that were common at the founding of our American judicial system were primarily driven by prior experiences with England. Today, we see the manifestation of these concerns as legal and social science scholars have generated comprehensive assessments of the correlates generating wrongful convictions of actually innocent men and women.

Plea bargaining has become an important instrument of state authority necessary to efficiently process felony criminal cases. However, given its hegemonic ubiquity throughout the system, it is apparent to me that the failure of both Supreme Court case law, and Congressionally generated federal rules legitimating pleas has given rise to a shadow administration of justice. Therefore, it is not difficult to conclude that the sleight of hand remains the presumption of guilt from arrest through indictment. This is in spite of our nation’s tendency to valorize a system of due process that affords protection of rights accruing to defendants who elect to plead not guilty and go to trial, and the opaque exercise of prosecutorial authority that constitutes 95 to 97 percent of all felony convictions procured through plea bargaining. Viewed in this context, Federal Rule 11 – with its “rational” colloquy ostensibly designed to assure the court and serve as a palliative to the public that a defendant is entering the plea knowingly and voluntarily, in addition to the requirement that pleas must possess a “factual basis” (never yet clearly defined by either a court or the United States Congress) – is a tissue-thin cloak to legitimate what is otherwise a severe usurpation of the protection of liberty interests that are paramount to a democracy.

http://lawprofessors.typepad.com/crimprof_blog/2018/08/schehr-on-indictment-standards-plea-bargaining-and-innocence.html

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