This is a tale of two court systems, both committed to preserving the same set of rights, and both dedicated to the pursuit of justice. While I am no monist, and believe that many roads can all lead to the same destination, I know that were I accused of a crime, I would much prefer the procedure in the federal courts. At least there I would know what I was doing and why as I considered whether to enter a plea of guilty.
A client is accused, whether by grand jury, warrant or on site arrest, and becomes a defendant. The first test for defense counsel is to determine whether the evidence against the client was lawfully obtained. If evidence was unlawfully seized and can be suppressed, it is possible there may be insufficient evidence to prove a crime.
Testing whether evidence should be suppressed or not is subject to motion practice. Typically hearings are held, and briefs written. A judge finds facts and applies the law to those facts. All this is done outside the presence of the jury and in large measure determines what a jury can and cannot see.
If there are no suppression issues, a defendant can still challenge whether the evidence is sufficient to make out a crime. And other issues, too, may be raised: a defendant can claim selective prosecution, or that a statute has been misapplied in some manner than offends constitutional norms. As in the case of suppression issues, these claims are decided by a judge, well before a jury is summoned. Decisions on these issues also limit what a jury can and cannot see.
Clearly, any defendant facing a criminal charge is entitled to know the charges against him, and the evidence that the prosecution intends to use. How else can a defendant make an intelligent decision about whether to run the risk or trial or enter a plea? And if a plea is to be entered, doesn’t the extent of the sanction depend at least in part on the nature and extent of the evidence against a defendant?
Court watchers speak of the vanishing trial. On the civil side, cases increasingly resolved by way of motions or settlement. Few litigants face the risk of trial. They are given a chance to test the evidence both for and against them in motions practice. Once they know what the future holds, they can bargain in the shadow of both law and facts. Parties make calculated decisions to avoid trial based on assessments of risk.
In the criminal context, most cases are resolved by way of a plea bargain. But only the federal system permits the parties to make intelligent decisions. In the state system, a defendant is almost always forced to wait until the time of trial to have his motions heard. What’s worse, plea negotiations in the state system operate on the unwritten presumption that offers to plea become more draconian the closer one gets to trial. Hence the following dismal reality: Criminal defendants in the state system are almost always asked to enter pleas before they have an opportunity to challenge the state’s evidence. State defendants plea with blindfolds firmly in place.
The federal system does not require blind pleas. In the federal courts, motions are heard early, and rulings on those motions are made well before the time of trial. That is as it should be.
On the civil side, courts don’t require settlement conferences before the parties have had a chance to test one another’s case. A party sitting on what they believe to be a knock out punch is given a chance to deliver the blow before serious discussions take place about resolution of the case. There is no hidden imperative to settle or die on the civil side.
Why do we permit pressure to be brought to bear on criminal defendants in the state system before they even have a chance to have potentially dispositive motions heard? It is unfair and suggests that our commitment to the presumption of innocence is at best lukewarm.
Reform of Connecticut criminal procedure is necessary. No plea bargaining should be permitted until after a party has had the chance to file motions and have those motions heard. The current state of the law transforms the criminal process into a game of chance. We would not tolerate that when the money of an insurance company is on the line. We should not tolerate it when the liberty of a person presumed innocent is at risk.
Reprinted courtesy of the Connecticut Law Tribune.
