Once the deal is worked out, the prosecution and defense will arrange a court hearing and inform the judge about the agreement. Assuming the judge accepts the deal or suggests changes that are satisfactory to both sides, the judge will hear the guilty or no contest plea in open court so that it becomes part of the record. Then, the defendant will be sentenced, either at the same time (which is typical in some less serious cases) or at a later sentencing hearing. (For more information on plea deals in a criminal case, see our section on Plea Bargains).

In-custody defendants may be brought to court soon after the agreement is reached for a special hearing in which the judge takes the plea. Otherwise, the taking of the plea (and sometimes sentencing) will occur at the next scheduled hearing. Depending on when the deal is struck, the next scheduled appearance may be the arraignment, preliminary hearing, or trial.

The Judge's Review

As a practical matter, many judges go along with plea bargains as long as the agreed-upon sentences are within the range of what they consider fair. Usually this means determining whether, given the seriousness of the crime and the defendant’s criminal record, the sentence seems appropriate in light of other sentences the judge has handed down.

There are some other variables that may come into play, however. Particular judges might (rightly or wrongly) take into their calculation whether they remember the defendant from a previous appearance in their courtroom and how they and members of the community feel (especially if the judge is up for reelection) about the crimes in question. Sometimes, even such whimsy as whether the judge woke up in a good mood or had a rough morning can also have an impact on decisions made that day.

Making Sure the Defendant Understands the Rights He's Giving Up: "Knowing and Intelligent" Waivers

Even if the deal seems fair, judges typically engage defendants in a courtroom “colloquy,” or verbal exchange, to make sure that defendants have committed the offenses to which they are pleading guilty. (But see Pleading Guilty While Saying You're Innocent.)

In federal courts, defendants who want to plead guilty or nolo contendere must testify under oath to facts establishing their guilt. Moreover, before accepting guilty pleas, judges have to be sure that defendants are aware of the rights they are giving up by pleading guilty. For a “knowing and intelligent” guilty plea to be made, defendants have to:

• admit the conduct made punishable by the law
• admit and understand the charges against them
• know the consequences of the plea (both the sentence as it stands and the possible sentences that could be given were the defendant to have a trial), and
• know and understand the rights that they are waiving (giving up) by pleading guilty, including (1) the right to counsel if unrepresented, (2) the right to a jury trial, (3) the right not to incriminate themselves, and (4) the right to confront and cross-examine their accusers.

Defendants should also know that, if they are not U.S. citizens, they risk deportation when they are convicted of a crime. Defendants are competent to waive counsel and plead guilty as long as they are capable of understanding the proceedings (Godinez v. Moran, U.S. Sup. Ct. 1993).

In some courts, defendants who are pleading guilty are asked to fill in or sign a form waiving their rights.

Questioning by the judge

Usually the judge asks the defendant a fairly long list of questions to determine whether the plea is knowing and intelligent. For their part, defendants normally follow their attorneys’ advice and avoid upsetting the plea bargaining apple cart by quietly answering “yes” to all the judge’s questions.

Assuming the defendants’ answers are satisfactory, judges typically accept the deal. In some cases, a judge may consult with the crime victim, ask a probation officer to prepare a presentence report, and listen to arguments from both the defense and prosecution before making sentencing decisions.

Pleas that are not knowing and intelligent

If a defendant entered into a plea without counsel and did not appear, from a later review of the record, to have made a knowing and intelligent plea, that defendant may have grounds to request that the conviction be stricken (removed) from the defendant’s record, or at least not be considered in any future proceedings. Striking prior convictions can be important because offenders tend to be sentenced more severely with each repeat offense. However, even if a defendant did not have counsel or waived counsel before pleading guilty, the conviction may later be used to make future sentences more severe, unless the defendant was incarcerated after the plea was entered (Nichols v. U.S., U.S. Sup. Ct. 1994).

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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