Pgina |1 PONTIFICIA UNIVERSIDAD CATLICA DEL ECUADOR FACULTAD DE JURISPRUDENCIA PRIMER SEMESTRE 2012 DERECHO PROCESAL PENAL DR.

RICARDO VACA ANDRADE NOMBRE: Edgar Roberto Acosta Andrade FECHA: 26 de febrero de 2012 Guilty Plea

Understanding The Guilty Plea Process | Criminal Defence Articles by Tushar K. Pain
Posted by: Toronto Criminal Defence Lawyer
Deciding to plead guilty is a difficult decision. Pleading guilty means that you are giving up your right to a trial you are excusing the Crown from having to prove your guilt beyond a reasonable doubt through the presentation of admissible evidence. It means that you are putting yourself at the mercy of the court to decide your fate. Having decided to plead guilty, you want to make sure that you understand the process that you are about to go through. Appearing in court for any reason can be a nerve-wracking experience. Appearing in court to plead guilty to a criminal offence can be especially intense. In the haze created by stress and nervous tension, the whole court process might pass by like a quick blur. Before, you know it, youve been found guilty and sentenced but you re not really sure what happened. This event is far too important to let it whiz by. You will want to know what to expect; you will want to be aware of what is happening; and you will want to have some foreknowledge of the outcome. Guilty pleas typically take place in a courtroom designated for accepting guilty pleas. That is, unless you are pleading guilty on the day of your trial, in which case your guilty plea will take place in front of the trial judge. There will often be many matters to be dealt with in guilty plea court. There are often many people waiting to be dealt with. You will have to sit and wait until your matter is called. When you are called, your lawyer will stand up and address the court, introducing himself and you. At this time, you should approach the front of the court and stand behind your lawyer. Before the process starts, the judge may choose to question you. He or she may wish to confirm that (a) you are entering a guilty plea voluntarily (b) that by entering a guilty plea you are foregoing your right to a trial (c) that it is the trial judge that has the final say regarding the what sentence shall be imposed regardless of any agreement your lawyer and the Crown have come to (d) that you may now change your mind and set a date for a trial instead and (e) the plea will not be struck or reversed by the judge if you are unhappy with the sentence. The first step in the process involves the arraignment the reading of the charge. The clerk of the court will stand up and read the charge to you. The court clerk will say something like the following: Ted Jones, you stand charged that on or about the 3rd day of June in the year 2003, in the City of Toronto, in the Toronto Region, did without reasonable excuse refuse to comply with a demand made to you by John Smith, a peace officer under section 254(2) of the Criminal Code to provide forth with a sample of your breath as in the opinion of John Smith was necessary to enable a proper analysis of

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your breath to be made by means of an approved screening device. The Crown having elected to proceed summarily, how do you plead? At this point you simply reply, Guilty, Your Honour. Following this, you will be asked to have a seat and listen to the facts. Sit either beside or behind your lawyer and listen carefully. The Crown will then read in the facts in support of the charge. This means that the Crown will read out the facts to the judge from the police synopsis. At this point the judge will ask your lawyer if the facts, as read in by the Crown, are substantially correct. At this point, your lawyer will either indicate that the facts are substantially correct as stated by the Crown or your lawyer will indicate what facts are disagreed with and what the defences position on the facts are. This of course will be based on your review of the facts with the lawyer before attending court. You should not be hearing the facts for the first time as the Crown is reading them out. Once the facts have been settled, the judge will make a finding of guilt. At this point, the sentencing phase is commenced. If you have a previous criminal record that the Crown is aware of, it will present it to the court at this time to be entered as an exhibit on sentencing. Before doing so, a copy of it will be shown to your lawyer for verification. Your lawyer will either confirm and admit the record or indicate that it is inaccurate. Again, this should not be the first time that you are reviewing your criminal record with your lawyer. Following this, the judge will listen to legal submissions from the Crown and then your lawyer. The Crown will indicate what it is seeking and why it feels the requested sentence is justified. Your lawyer will then tell the judge the details of your background and then point out the mitigating circumstances of the case and why you should receive the sentence that your lawyer is seeking. Your lawyer may also refer to caselaw that supports his position regarding the sentence. The judge may ask either the Crown or your lawyer for clarification or elaboration. The judge will then ask you if you have anything to say before he or she passes sentence. There is no obligation upon you to say anything. Often times, it is best to say nothing. However, you should discuss this with your lawyer beforehand. If you are going to say anything at all, your lawyer should know what it is you intend to say. You want to ensure that what you plan on saying will not make matters worse for you. The judge will then pass sentence. In some instances, once sentence is passed, the judge may ask either you or your lawyer whether there are any questions about the sentence. If you have a question or concern, let your lawyer know immediately so he can take it up with the judge, if necessary. A guilty plea should not be entered into lightly. It should not be entered into on a whim. A guilty plea carries consequences with it. But sometimes it is the right decision. You can help yourself and reduce your own anxiety about pleading guilty by knowing what to expect.

What does pleaded guilty mean?

If you have been arrested by the police because they think you have committed a crime, the next thing that happens is that you are brought to court for trial.

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When you come into court the charges against you are read out and you are given the opportunity to say that either you did not do the things you are accused of (a plea of not guilty) or that you agree that you did what you are accused of (a plea of guilty). If you plead guilty then there is no trial and the court will decide the punishment you deserve immediately. If you plead not guilty, a trial will be held and a jury will be appointed to hear both sides of the argument and decide if they think you are or are not guilty. If they decide you are guilty you will be punished.

Guilty Plea: Accepting the Plea - The Nature Of Guilty Pleas

A guilty plea consists of a defendant admitting having committed one or more of the crimes charged and a court agreeing to accept that admission and to sentence the defendant. Ordinarily, a guilty plea occurs after defense counsel has bargained with the prosecution and obtained some concessionfor example, a reduction of the charges, an agreement not to file other charges, or a stipulation with respect to the position the prosecution will take at sentencing. Nevertheless, defendants have a right to plead guilty without a prosecutor's agreement, provided that they plead to all the crimes charged. Defendants sometimes pursue this course in unwinnable or minor cases an which they believe a plea will encourage the presiding judge to impose a lenient sentence. The main purpose of a guilty plea is to produce a final conclusion to a criminal case. Once a defendant enters a guilty plea, the prosecutor has no further obligation to introduce evidence of the defendant's guilt. A pleading defendant waives the right to raise most objections to police, prosecutorial, or judicial behavior that could have been raised on appeal after a trial and conviction. However, the defendant may still appeal issues relating to the guilty plea process, to events that occur after the guilty plea (e.g., improprieties in sentencing), to the essential invalidity of the court's "jurisdiction," and to a limited number of constitutional violations. The Supreme Court has had difficulty identifying dividing lines for which constitutional issues may be raised post-plea. Appellate courts also have upheld the ability of prosecutors to demand, as part of a plea bargain, a waiver of the right to appeal some issues relating to sentencing. In general, the courts have shown a strong preference for maintaining the finality of guilty pleas. In other respects, guilty pleas have the same consequences as guilty verdicts. The judgments of conviction carry the identical evidentiary value and ramifications for future proceedings including the same potential for sentence enhancement and for forfeiture of assets. In many jurisdictions, a guilty plea or guilty verdict fore-closes defendants from suing their lawyers for malpractice. Some jurisdictions recognize pleas that are not guilty pleas in the traditional sense. The most common alternative is the nolo contendere, "Alford," or "non vult" plea. It enables defendants to accept the consequences of a guilty verdict without admitting that they committed the offense. A nolo plea has most of the consequences of a guilty plea; the potential sentence is identical and the judgment is considered a conviction. The plea is useful when both sides want to dispose of a case in order to reduce their risks, but the defendant simply cannot admit guilt.

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Valid guilty pleas have three basic elements. The court accepting the plea must have jurisdiction. The defendant must be competent to make the decision to plead guilty. Due process requires that the decision be voluntary and reasonably well-informed. Competence and voluntariness are linked. Because plea agreements are conceptualized as rational bargains, it is important for courts to satisfy themselves that defendants have exercised free will. A mentally incompetent defendant or one under the influence of drugs or alcohol is legally unable to enter a voluntary plea. The standards for mental incompetence are similar to the standards for competence to stand trial; namely, whether the defendant can understand the proceedings and has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." The concept of voluntariness extends further. It is easier to list factors that may make pleas involuntary than to identify a general standard for voluntary pleas. When a defendant enters a plea because of terror, threats, or improper inducements, the plea is not voluntary. On the other hand, a defendant's fear of the real consequences of not pleading guilty or the defendant's desire to receive concessions will not vitiate a plea. Otherwise, most pleas would be invalid. The dividing line is elusive.

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