Intersections between In-Court Procedures and the Production of Guilty Pleas

Anleu, Sharyn Roach, Mack, Kathy, Australian and New Zealand Journal of Criminology

In Australia (as elsewhere) most criminal defendants plead guilty and do not contest the charges at trial. Our research suggests that guilty pleas can result from ah intersectional process, in which in-court events interact with out-of-court activities and discussions. This article draws on an observational study of criminal matters in Australian lower courts. It examines the early stages of in-court proceedings, in particular the ways in which the judicial officer's--here the magistrate--decisions about adjournments, contribute to and are driven by the guilty plea production process. While Australian magistrates and judges have no direct role in or even knowledge of the substance of plea or charge bargaining, they can influence the circumstances for a prompt guilty plea.

Keywords: adjournments, courts, guilty pleas, magistrates

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In Australia (as elsewhere), most criminal defendants plead guilty and do not contest the charges at trial (Baldwin & McConville, 1977, 1979; Mack & Roach Anleu, 1995; Mather, 1974, 1979; Sentencing Advisory Council [Victoria], 2007). The key active role of the judge or magistrate is to sentence the defendant. In many jurisdictions, at least two-thirds of defendants, and often more, ate sentenced following a plea of guilty (Australian Bureau of Statistics, 2008, pp. 14, 26). While Australian magistrates and judges have no direct role in or even knowledge of the substance of plea or charge bargaining, they ate aware that a contested criminal trial is unusual. This article demonstrates the ways in which they can facilitate the production of a guilty plea without direct intervention, thus preserving the principles of judicial neutrality and the voluntariness of the guilty plea.

Defendants plead guilty for a variety of reasons, including: to benefit from any sentence discount, a sense of guilt of remorse, wanting to get the matter out of the way, shame, of a desire to protect another person. Guilty pleas may occur with of without legal advice. Plea negotiations between the prosecutor and a defendant's legal representative may result in reduced or different charges to which the defendant will plead guilty. The most frequent type of plea bargaining in Australia is discussions between defence and prosecution resulting in a charge reduction, which usually occur in the defendant's absence and outside the formal court proceedings (Findlay, Odgers, & Yeo, 2005; Mack & Roach Anleu, 1995; Seifman & Freiberg, 2001). Australian law is clear that judicial officers have no role in any discussions between the defence and prosecution regarding the charge, plea or likely sentence (GAS v The Queen, 2004). The risk of perceived or actual coercion and the threat to impartiality and detachment militate against judicial participation in plea negotiations (Mack & Roach Anleu, 1995).

Nonetheless, the judicial officer can play a significant role in the production of guilty pleas. A magistrate's decisions and actions can be essential for plea discussions to occur and for decisions about plea to be made. A court observation study conducted in the Australian magistrates courts (1) indicates that the adjournment (called a 'continuance' in the United States) provides a critical intersection between formal court proceedings and the informal discussions, interactions and considerations that might produce guilty pleas. A request for an adjournment provides the magistrate an opportunity to make explicit expectations about the progress and direction of a matter, especially if ir has been adjourned previously. However, the magistrate's role is at a distance, in order to maintain judicial impartiality while at the same time facilitating the conditions that can produce guilty pleas. The key active role of the judge or magistrate is to sentence the defendant.

Judicial officers sometimes have a more active or interventionist role in the various formal pre-trial conferences or contest mention systems that exist in several Australian and other jurisdictions. The emphasis in these processes is to clarify the contested issues and attempt their resolution. In some cases, the magistrate might intimate or indicate the likely sentence. This can have the effect of producing a guilty plea, either immediately or following a short adjournment (Cannon, 2008; Mack and Roach Anleu, 1995). These specialised pre-trial procedures are usually listed separately and are not heard as part of the general criminal list, which is the subject of this research.

This article investigates magistrates' decisions regarding adjournments with particular attention to the ways in which they articulate expectations about the purpose of the adjournment, and the ways those expectations relate to the production of guilty pleas.

The following section discusses the role of guilty pleas in the criminal justice system, and considers the ways in which adjournments can play a critical role in the production of a guilty plea.

Guilty Pleas, Conceptions of Justice and Adjournments

The general legal principle is that courts can accept a guilty plea so long as it is the voluntary and free decision of the defendant: '[I]t is the accused person, alone, who must decide whether to plead guilty to the charge preferred. That decision must be made freely' (GAS v The Queen, 2004, at 210). 'A plea of guilty must not be induced in a way that could be regarded as over-bearing the free will of the defendant' (R v KCH, 2001, at 235-36). In the US, 'a conviction based on a coerced guilty plea violates a defendant's right to due process' (Waltz, 1970, p. 521). Despite this legal requirement, much of the research on the practical processes leading to a plea of guilty focuses on the various pressures or incentives, particularly from legal advisers, that induce, persuade or influence a defendant to change the plea to guilty (Baldwin & McConville, 1977; 1979; McCoy, 1993; Schulhofer, 1994; Tata, 2007).

In many jurisdictions, judicial participation in the production of pleas, either via involvement in negotiations with the defence of prosecution, or in direct communication with a defendant, is considered improper for two main reasons.

First, judicial preference may coerce or influence a defendant to plead guilty thereby undermining the requirement that guilty pleas must be free and voluntary. As the judicial officer has ultimate authority to make decisions about a matter, especially regarding sentence, judicial preference may unfairly influence the defendant to decide to plead guilty, even when he or she has an arguable defence. Second, such active involvement deviates from the formal judicial role as neutral, detached and impartial and may compromise judicial independence by illegitimately constraining sentencing discretion. Second, judicial preference may coerce or influence a defendant to plead guilty thereby undermining the requirement that guilty pleas must be free and voluntary. As the judicial officer has ultimate authority to make decisions about a matter, especially regarding sentence, judicial preference may unfairly influence the defendant to decide to plead guilty, even when he or she has an arguable defence.

Nonetheless, guilty pleas in Australia (as well as England and Wales, Scotland and New Zealand) take place in a legal context in which consideration of a reduced sentence in recognition of a guilty plea is mandated by statute or case law in all jurisdictions. The general principle is that the earlier the plea of guilty the larger the reduction in sentence, though consideration of aggravating factors might lessen the benefit of an early plea (Australian Law Reform Commission, 2005; Sentencing Advisory Council [SAC], Victoria, 2007). (2) Apart from the sentence discount, there are no sentence guarantees and formal judicial sentence indication is rare (SAC Victoria, 2007). This situation differs from many US jurisdictions where presiding judicial officers frequently have some formal or explicit input into plea bargaining discussions and agreements (Emmelman, 1996, 1998; Maynard, 1984b). The judicial officer can exert pressure and influence on the legal representatives or guarantee a sentence in order to advance settlement (Emmelman, 1996).

In the Australian context, the adjournment can be a critical nexus between the formal, in-court, pre-trial processes and the informal, out-of-court processes that lead to a guilty plea. Magistrates' adjournment decisions are part of a constellation of decisions made in- and out-of-court by various participants--prosecutors, police, defence lawyers and people defending criminal charges--in a criminal justice system in which most charges are resolved by guilty plea. 'The responses of social control agents to individual cases are fundamentally shaped by reference to larger, organizationally relevant wholes' (Emerson, 1983, p. 427). Outcomes are the result of diverse participants doing their jobs, and performing the role of magistrate entails responding to or managing 'several different contradictory objectives' (Hutton, 1987, p. 119).

When magistrates make a decision to adjourn a particular case, they anticipate, often explicitly and normatively, other interactions and decisions that might involve the prosecution, the defence lawyer and/or the defendant. Even though judicial officers in Australia have no formal role in plea discussions, and such discussions are not directly visible to them, they are aware that the vast numbers of defendants who come before the courts will eventually plead guilty, and this fact may, in turn, affect their activities and statements. They will also be aware that legal advice is often critical in the decision to plead guilty (McConville & Mirsky, 1993; Tata, 2007; Tata & Stephen, 2006). The request for an adjournment provides an opportunity for a judge or magistrate to make explicit her or his expectations about the progress and direction of a matter, especially if it has been adjourned previously. The judicial officer's actions and explicit expectations can speed up negotiations of endorse a particular course that will assist the production of a guilty plea. The decisions of the court are part of a complex or network of decision-making in which 'all the incentives point towards a guilty plea' (McConville, 1998, p. 572).

The Research Setting

As with many other lower courts, magistrates in Australia preside over courts with a very high volume of cases (Steering Committee for the Review of Government Service Provision [SCRGSP], 2008). Magistrates sit alone (without juries) and make many decisions, typically extemporaneously, on law and facts. The criminal list, constituted mostly by drink driving, petty theft, common assault and some drug offences, is a central component of magistrates' everyday work and is a feature of all first instance courts. Magistrates have the authority to imprison for up to 2 years and more, depending on the state or territory in which they sit (Lowndes, 2000). There is considerable time pressure in these courts, with many matters being dealt with quickly in order to …

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Publication information: Article title: Intersections between In-Court Procedures and the Production of Guilty Pleas. Contributors: Anleu, Sharyn Roach - Author, Mack, Kathy - Author. Journal title: Australian and New Zealand Journal of Criminology. Volume: 42. Issue: 1 Publication date: April 2009. Page number: 1+. © 2009 Australian Academic Press Pty. Ltd. COPYRIGHT 2009 Gale Group.

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