Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XII. The evidentiary features of juridical proceedings in each of the special procedures
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12.5. The judicial phase of plea bargaining proceedings

12.5. The judicial phase of plea bargaining proceedings

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As there is no need to hold a trial for the preliminary examination of the settlement, the Act allows for its approval already in the course of the court sessions preparing the trial. However, as a rule of guarantee, the participation of a lawyer is mandatory in such cases. The procedure for preparatory meetings is as follows:

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  • the prosecutor explains the substance of the motions;
  • the court informs the defendant of the consequences of accepting the settlement;
  • the court asks the defendant to state whether he or she will plead guilty in accordance with the plea agreement and waive his or her right to a trial;
  • the court allows the accused to consult the defence;
  • if the accused pleads guilty and waives his right to trial in accordance with the plea bargain, the court shall examine whether the conditions for approving the plea bargain are met, on the basis of the case file and, if necessary, the questioning of the accused and the answers to the questions put to the defence;
  • the prosecutor and the defence may speak before a decision is taken on whether to approve the settlement.1
 

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The court shall approve the plea bargain if it meets the conditions set out in the Be., the defendant understands the nature of the plea bargain and the consequences of approving it, there is no reasonable doubt as to his or her capacity to plead and the voluntariness of his or herconfession, and his or her admission of guilt is clear and supported by the case file.2 These circumstances must be examined by all procedural actors (court, prosecutor, defence) with equal weight, as they are of such a nature that they may be relevant to the correctness of the whole judicial process. Nor should the defender seek to conceal from the court circumstances that are otherwise obvious or suspicious to him3 in order to bring the case to a speedy conclusion. In such a case, he should explicitly explain to his client that he cannot ethically support a statement that is manifestly false or otherwise lacking in intent, or that is deliberately misleading.

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If a trial is required after the settlement has been approved, the court will explain the substance of the settlement after the trial has begun. It is an essential rule that the court may set aside the order approving the plea bargain after obtaining statements from the prosecutor and the accused if, in the light of the evidence, it considers that the facts or the classification of the case have changed and that the plea bargain should have been rejected.4 If the court annuls the order approving the plea bargain, the plea bargain is not binding on the prosecution or the accused.5

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Another way for a settlement procedure to proceed is for the court to refuse to approve it in advance, including if

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  • the accused did not plead guilty at the preparatory hearing in accordance with the plea agreement, or
  • has not waived his right to a trial,
  • the conditions for approving the settlement are not met,
  • the debtor has not fulfilled the obligations undertaken, or
  • a different qualification from that of the prosecution seems to be established.6
 

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In such cases, the proceedings must be conducted in accordance with the general rules, and the prosecution or the accused are not bound by the terms of the agreement.7

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What I think is important to emphasise from the above is that (1) plea bargains are not required to be accepted by the courts unless they are supported by sufficient factual evidence; (2) the charge remains subject to change at subsequent stages of the proceedings, in the interests of the prosecution.8

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I would note that the biggest rival to plea bargaining might be the “measured motion” presented at the preparatory hearing, as their characteristics are very similar (in both cases the accused makes a guilty plea and waives his right to trial, in exchange for some kind of benefit). I believe that prosecutors will, as a general rule, use the option of a measured motion in all cases where the facts have been fully established.

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In the US, the plea agreement between the defendant and the prosecutor is also presented to the judge in a public arraignment. The judge will then dispense with the evidentiary process altogether and determine criminal responsibility solely on the basis of the evidence presented to him or her, for the crime(s) as set out in the defendant’s plea. The sentence will also be imposed taking into account the terms of the agreement.

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In terms of the activity of judges, different practices have emerged in the US: (1) in some Member States they are completely inactive and do not participate in the substantive plea agreement; (2) in other cases the judge himself is subject to the procedure and can also be the initiator; (3) in the “intermediate model” the judge does not initiate the process, but can be involved in the communication between the parties.

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There are obviously “pro-contra” arguments for each solution. Obviously, the principle of the parties’ freedom of self-determination is better in the case of judicial passivity, but, according to Miskolcziné, “it is obvious that if the judge is involved in the proceedings in which he is entitled to make the final decision, the efficiency of the proceedings may improve. However, judicial participation can undoubtedly deprive the accused of a sense of freedom to bargain.”9

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The English Court of Appeal Criminal Division has set out guidelines for plea bargaining in the case of Regina v Turner, which is a quasi-precedent case. Accordingly, “the Court of Appeal has held that it may be open to challenge if the defence and the judge confer outside the trial in the absence of the accused. In such a case, the accused may later effectively argue that the decision taken in the plea bargain was not based on his own discretion. If the defendant is under the impression that the judge initiated the plea bargain, this may prevent him from making a decision free from influence (the defendant’s assumption may therefore be seen as unlawful pressure by the judge). In the case decision, the court held that the defence, in the context of its activities on behalf of its defence, cannot be excluded from communicating with the judge, but that the court should endeavour to conduct the case in open court.”10

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According to some sociological studies, the defendant’s attitude towards plea bargaining is strongly influenced by socio-economic status, criminal record, type of defence (self-defence, public defender, proxy defence) and the expected reaction of the jury.11 This led to an analysis of criminal cases completed between 1981 and 1984 in four US states. In 18,439 cases offences involving one defendent, 15,522 cases, i.e. 84 %, ended in a plea bargain.12 The general conclusions were as follows:

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  • defendants without sufficient financial means have used public defenders;
  • who had sufficient income usually arranged for a power of attorney;
  • differences in the quality of the defence had a decisive influence on the outcome of the case;
  • the prosecutor’s bargaining position was significantly limited by (1) the evidence available (the stronger the evidence, the more the prosecution sought to avoid a jury trial) and (2) the person of the defender;
  • the percentage of jury trials in which the number of convictions was almost the same for cases handled by authorised defenders was 16% and 10% for public defenders, but there were significant differences in favour of authorised defenders as regards acquittals.13
1 § 732 (1)–(6) para.
2 733. §
3 E.g. the accused has been under psychiatric treatment several times in the past, the relative has forced him/her to make a false confession, etc.
4 § 737 (1)–(2) para.
5 § 737 (3) para.
6 § 734 (1) para.
7 § 734 (3) para.
8 See In the US system – at trial – there is no possibility of either changing or extending the charge. “Misstatement of the charge can easily lead to acquittal as a result.” In Farkas (2007) ibid. 31.
9 Among the continental legal systems, German law, for example, explicitly provides for the active role of the judge in proceedings of a similar character. In Miskolcziné (2015) ibid. 67.
10 Miskolcziné (2015) ibid. 69.
11 Farkas (2007) ibid. 28.
12 The remaining 16% were tried by an ordinary jury.
13 Cf. The acquittal rate was 8% for authorised defenders and only 1% for public defenders. Champion, Dean J.: Private Counsels and Public Defenders: A look at Weak Cases, Prior Records, and Leniency in Plea Bargaining, Journal of Criminal Justice, 1989, Vol. 17. no. 4. 253–262. In Farkas (2007) ibid. 28–29.
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