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CRS Annotated Constitution

Fourteenth Amendment -- Table of ContentsPrev | Next

Guilty Pleas.—A defendant may plead guilty instead of insisting that the prosecution prove him guilty. There are a number of different reasons why a defendant may be willing to plead guilty, perhaps because of overwhelming evidence against him, perhaps because, while the evidence leaves the outcome in doubt, should he go to trial and be convicted his sentence will be more severe than if he pleads guilty, perhaps to secure some other advantage. Often the defendant and his attorney engage in “plea bargaining” with the prosecution so that he is guaranteed a light sentence or is allowed to plead to a lesser offense. While the government may not structure its system so as to coerce a guilty plea,63 a guilty plea that is entered voluntarily, knowingly, and understandingly, even to obtain an advantage, is sufficient to overcome constitutional objections.64 The guilty plea and the often concomitant plea bargain are important and necessary components of the criminal justice system,65 and it is not impermissible for a prosecutor during such plea bargains to put a defendant to a hard choice, requiring him to forego his right to go to trial in return for escaping what is likely to be a much more severe penalty if he does elect to go to trial.66

[p.1758]

The court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly,67 and “the adjudicative element inherent in accepting a plea of guilty must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”68

Prosecutorial Misconduct.—When a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, due process is violated. The clause “cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance . . . is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.”69 The quoted language was dictum in the case in which it was uttered,70 but the principle enunciated has been utilized to require state officials to controvert allegations of convicted persons that knowingly false tes[p.1759]timony had been used to convict,71 and to upset convictions found to have been so procured.72 Extending the principle, the Court in Miller v. Pate73 upset a conviction obtained after the prosecution had represented to the jury that a pair of men’s shorts found near the scene of a sex attack belonged to the defendant and that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the shorts and furthermore that the shorts were not in fact bloodstained, and that the prosecution had known these facts.

Furthermore, in Brady v. Maryland,74 the Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” In that case, the prosecution had suppressed an extrajudicial confession of defendant’s accomplice that he had actually committed the murder; the accomplice’s confession could have influenced the jury’s determination of punishment but not its judgment of guilt. But this beginning toward the development of criminal discovery was not carried forward,75 and the Court has waivered in its application of Brady.

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In finding Brady inapplicable because the evidence withheld was not material and not exculpatory, the Court in Moore v. Illinois,76 restated the governing principles. “The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.”

In United States v. Agurs,77 the Court summarized and somewhat expanded the prosecutor’s obligation to disclose to the defense exculpatory evidence in his possession, even in the absence of a request, or upon a general request, by defendant. The obligation is expressed in a tripartite test of materiality of the exculpatory evidence in the context of the trial record. First, if the prosecutor knew or should have known that testimony given to the trial was perjured, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.78 Second, if the defense specifically requested certain evidence and the prosecutor withheld it, the conviction must be set aside if the suppressed evidence might have affected the outcome of the trial.79 Third (the new law created in Agurs), if the defense did not make a request at all, or simply asked for “all Brady material” or for “anything exculpatory,” a duty resides in the prosecution to reveal to the defense obviously exculpatory evidence; if the prosecutor does not reveal it, reversal of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant’s guilt.80

Supplement: [P. 1760, add to text after n.80:]

This tripartite formulation, however, suffered from two apparent defects. First, it added a new level of complexity to a Brady inquiry by requiring a reviewing court to establish the appropriate level of materiality by classifying the situation under which the exculpating information was withheld. Secondly, it was not clear, if the fairness of the trial was at issue, why the circumstances of the failure to disclose should affect the evaluation of the impact that such information would have had on the trial. Ultimately, the Court addressed these issue in the case of United States v. Bagley.24

In Bagley, the Court established a uniform test for materiality, choosing the most stringent requirement that evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.25 This materiality standard, found in contexts outside of Brady inquiries,26 is applied not only to exculpatory material, but also to material which would be relevant to the impeachment of witnesses.27 Thus, where inconsistent earlier statements by a witness to an abduction were not disclosed, the Court weighed the specific effect that impeachment of the witness would have had on establishing the required elements of the crime and of the punishment, finally concluding that there was no reasonable probability that the jury would have reached a different result.28

A prosecutor does not violate the due process clause when, in negotiating with a defendant to obtain a guilty plea or some other action that will lessen the trial burden, such as trial before a judge[p.1761]rather than jury, he threatens and carries out the threat to seek a more severe sentence, either by charging a greater offense or recommending a longer sentence.81 But the prosecutor does deny due process if he penalizes the assertion of a right or privilege by the defendant by charging more severely or recommending a longer sentence.82 The distinction appears to represent very fine line–drawing, but it appears to be one the Court is committed to.


Footnotes

63 United States v. Jackson, 390 U.S. 570 (1968) .
64 North Carolina v. Alford, 400 U.S. 25 (1971) ; Parker v. North Carolina, 397 U.S. 790 (1970) . See also Brady v. United States, 397 U.S. 742 (1970) . A guilty plea will ordinarily waive challenges to alleged unconstitutional police practices occurring prior to the plea, unless the defendant can show that the plea resulted from incompetent counsel. Tollett v. Henderson, 411 U.S. 258 (1973) ; Davis v. United States, 411 U.S. 233 (1973) . But see Blackledge v. Perry, 417 U.S. 21 (1974) . The State can permit pleas of guilty in which the defendant reserves the right to raise constitutional questions on appeal, and federal habeas courts will honor that arrangement. Lefkowitz v. Newsome, 420 U.S. 283 (1975) . Release–dismissal agreements, pursuant to which the prosecution agrees to dismiss criminal charges in exchange for the defendant’s agreement to release his right to file a civil action for alleged police or prosecutorial misconduct, are not per se invalid. Town of Newton v. Rumery, 480 U.S. 386 (1987) .
65 Blackledge v. Allison, 431 U.S. 63, 71 (1977) .
66 Bordenkircher v. Hayes, 434 U.S. 357 (1978) . Charged with forgery, Hayes was informed during plea negotiations that if he would plead guilty the prosecutor would recommend a five–year sentence; if he did not plead guilty, the prosecutor would also seek an indictment under the habitual criminal statute under which Hayes, because of two prior felony convictions, would receive a mandatory life sentence if convicted. Hayes refused to plead, was reindicted, and upon conviction was sentenced to life. Four Justices dissented, id. at 365, 368, contending that the Court had watered down North Carolina v. Pearce, 395 U.S. 711 (1969) . See also United States v. Goodwin, 457 U.S. 368 (1982) .
67 Boykin v. Alabama, 395 U.S. 238 (1969) . In Henderson v. Morgan, 426 U.S. 637 (1976) , the Court held that a defendant charged with first degree murder who elected to plead guilty to second degree murder had not voluntarily, in the constitutional sense, entered the plea because neither his counsel nor the trial judge had informed him that an intent to cause the death of the victim was an essential element of guilt in the second degree; consequently no showing was made that he knowingly was admitting such intent. “A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving . . . or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.” Id. at 645 n.13. See also Blackledge v. Allison, 431 U.S. 63 (1977) .
68 Santobello v. New York, 404 U.S. 257, 262 (1971) . Defendant and a prosecutor reached agreement on a guilty plea in return for no sentence recommendation by the prosecution. At the sentencing hearing months later, a different prosecutor recommended the maximum sentence, and that sentence was imposed. The Court vacated the judgment, holding that the prosecutor’s entire staff was bound by the promise. Prior to the plea, however, the prosecutor may withdraw his first offer, and a defendant who later pled guilty after accepting a second, less attractive offer has no right to enforcement of the first agreement. Mabry v. Johnson, 467 U.S. 504 (1984) .
69 Mooney v. Holahan, 294 U.S. 103, 112 (1935) .
70 The Court dismissed the petitioner’s suit on the ground that adequate process existed in the state courts to correct any wrong and that petitioner had not availed himself of it. A state court subsequently appraised the evidence and ruled that the allegations had not been proved in Ex parte Mooney, 10 Cal. 2d 1, 73 P.2d 554 (1937), cert. denied 305 U.S. 598 (1938) .
71 Pyle v. Kansas, 317 U.S. 213 (1942) ; White v. Ragen, 324 U.S. 760 (1945) . See also New York ex rel. Whitman v. Wilson, 318 U.S. 688 (1943) ; Ex parte Hawk, 321 U.S. 114 (1914) . But see Hysler v. Florida, 315 U.S. 411 (1942) ; Lisenba v. California, 314 U.S. 219 (1941) .
72 Napue v. Illinois, 360 U.S. 264 (1959) ; Alcorta v. Texas, 355 U.S. 28 (1957) . In the former case, the principal prosecution witness was defendant’s accomplice, and he testified that he had received no promise of consideration in return for his testimony. In fact, the prosecutor had promised him consideration, but did nothing to correct the false testimony. See also Giglio v. United States, 405 U.S. 150 (1972) (same). In the latter case, involving a husband’s killing of his wife because of her infidelity, a prosecution witness testified at the habeas corpus hearing that he told the prosecutor that he had been intimate with the woman but that the prosecutor had told him to volunteer nothing of it, so that at trial he had testified his relationship with the woman was wholly casual. In both cases, the Court deemed it irrelevant that the false testimony had gone only to the credibility of the witness rather than to the defendant’s guilt. What if the prosecution should become aware of the perjury of a prosecution witness following the trial? Cf. Durley v. Mayo, 351 U.S. 277 (1956) . But see Smith v. Phillips, 455 U.S. 209, 218–21 (1982) (prosecutor’s failure to disclose that one of the jurors has a job application pending before him, thus rendering him possibly partial, does not go to fairness of the trial and due process is not violated).
73 386 U.S. 1 (1967) .
74 373 U.S. 83, 87 (1963) . In Jencks v. United States, 353 U.S. 657 (1957) , in the exercise of its supervisory power over the federal courts, the Court held that the defense was entitled to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses during the investigatory stage. Cf. Scales v. United States, 367 U.S. 203, 257–58 (1961) . A subsequent statute modified but largely codified the decision and was upheld by the Court. Palermo v. United States, 360 U.S. 343 (1959) , sustaining 18 U.S.C. Sec. 3500 .
75 See the division of opinion in Giles v. Maryland, 386 U.S. 66 (1967) .
76 408 U.S. 786, 794–95 (1972) . Joining Justice Blackmun’s opinion were Justices Brennan, White, Rehnquist, and Chief Justice Burger. Dissenting were Justices Douglas, Stewart, Marshall, and Powell. Id. at 800.

Supplement: [P. 1760, add to n.76:]

See also Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam) (holding no Due Process violation where prosecutor’s failure to disclose the result of a witness’ polygraph test would not have affected the outcome of the case).

77 427 U.S. 97 (1976) .
78 Id. at 103–04. This situation is the Mooney v. Holohan type of case.
79 Id. at 104–06. This the Brady situation.
80 Id. at 106–14. This was the Agurs fact situation. Similarly, there is no obligation that law enforcement officials preserve breath samples which have been utilized in a breath–analysis test; the Agurs materiality standard is met only by evidence which “possess[es] an exculpatory value . . . apparent before [it] was destroyed, and also [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 (1984) . See also Arizona v. Youngblood, 488 U.S. 51 (1988) (negligent failure to refrigerate and otherwise preserve potentially exculpatory physical evidence from sexual assault kit does not violate a defendant’s due process rights absent bad faith on the part of the police).
81 Bordenkircher v. Hayes, 434 U.S. 357 (1978) ; United States v. Goodwin, 457 U.S. 368 (1982) . In the former case, during plea negotiations, the prosecutor told defendant that if he did not plead guilty to the charges he would bring additional charges, and he did so upon defendant’s continued refusal. In the latter case, defendant was charged with a misdemeanor and could have been tried before a magistrate; he refused to plead guilty and sought a jury trial in district court. The Government obtained a four–count felony indictment based upon the same conduct and acquired a conviction.
82 Blackledge v. Perry, 417 U.S. 21 (1974) . Defendant was convicted in an inferior court of a misdemeanor. He had a right to a de novo trial in superior court, but when he exercised the right the prosecutor obtained a felony indictment based upon the same conduct. The distinction the Court draws between this case and Bordenkircher and Goodwin is that of pretrial conduct, in which vindictiveness is not likely, and posttrial conduct, in which vindictiveness is more likely and is not permitted. Accord, Thigpen v. Roberts, 468 U.S. 27 (1984) .

Supplement Footnotes

24 473 U.S. 667 (1985) .
25 473U.S. at 682 473U.S. at 682.
26 See United States v. Malenzuela–Bernal, 458 U.S. 858 (1982) (testimony made unavailable by Government deportation of witnesses); Strickland v. Washington, 466 U.S. 668 (1984) (incompetence of counsel).
27 473U.S. at 676–77 473U.S. at 676–77.
28 Strickler v. Greene, 527 U.S. 263 (1999) .
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