India Criminal Defense Manual - Plea Bargaining/Guilty Pleas

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Introduction - The concept of Plea Bargaining has been recently introduced in India. By insertion of a new chapter XXIA consisting of 12 sections in The Code of Criminal Procedure, 1973 by act 2 of 2006. The Central Government has modified the offences affecting the socio-economic condition of the country, which have been kept out of the preview of Plea Bargaining. Not only the Plea Bargaining will expedite the disposal of the cases, it may also result in adequate compensation for the victim of the crime, since he along with the prosecutors will be in a position to bargain with the accused.

In order to bring about a substantial reduction of cases, other than cases involving capital punishment, life imprisonment or imprisonment for a term exceeding seven years, suitable instructions have been issued for proper implementation of the Plea Bargaining Scheme.

Types of guilty pleas

In the American legal system, there are essentially two types of guilty pleas: guilty and nolo contendere (or "no contest"). A plea of guilty is an admission that one has committed the crime in question, and an acceptance of the related punishment. A plea of nolo contendere allows the accused to accept the punishment related to the crime without admitting to the crime. It is instead a statement that the accused will not contest the charges levied against him. Courts in the United States very rarely accept nolo contendere pleas. The implications of a guilty plea go beyond claiming responsibility for an act and replace the role of a jury at a trial. In India the Plea Bargaining can be divided into three types:

1. Charge bargaining

2. Sentence bargaining

3. Fact bargaining

Guilty pleas are often entered as the result of a plea bargain or an agreement in which a prosecutor and a accused arrange to settle the case against the accused. The accused agrees to plead guilty to a specified charge in exchange for a mutually agreed-upon sentence, a sentence recommendation to the judge, or the dismissal or reduction of other criminal charges. Quite often, an agreement to testify against a co-accused is a condition of a plea bargain.

A guilty plea is formal admission of guilt and is the equivalent of a conviction. Most often, it occurs as part of a plea bargaining process which may result in reduced charges or an agreed-upon favorable sentence. The vast majority of criminal cases in the U.S. (probably more than 95%) are resolved through this procedure. Plea bargaining has only been introduced to Indian law since 2005 and is probably the most effective means for expediting cases.

Plea Bargaining are often entered as the result of a plea bargain or an agreement in which a prosecutor and an accused arrange to settle the case against the accused. The accused agrees to plead guilty to a specified charge in exchange for a mutually agreed-upon sentence or the dismissal or reduction of other criminal charges. Quite often, an agreement to testify against a co-accused is a condition of a plea bargain. Each type of Plea

Bargaining mention herein above involves implied reduction sentence, but differ in the ways of achieving reductions. The supervising judge must approve of any guilty plea or plea bargain. Generally a judge will authorize the plea if the accused makes a knowing and voluntary waiver of his right to trial, the accused understands the charges, and the accused makes a voluntary confession, in court, to the alleged crime. Even if an accused agrees to plead guilty, a judge may decline to accept the guilty plea and plea bargain if the charge or charges have no factual basis or support.

The court must also explain the nature of the crimes to which the accused is pleading guilty. For example, while a person not involved in the legal system by trade or experience may have a general notion of what a crime such as murder means, he may not understand the difference between murder and manslaughter. It is important for the accused to understand to what he is pleading guilty, so that he may better understand the potential ramifications beyond the courthouse and any legal penalties.

The following offences are excluded from the preview of the Plea Bargaining:-

a. Dowry Prohibition Act

b. The Commission of Sati Prevention Act, 1987.

c. The Indecent Representation of Women (Prohibition) Act, 1986.

d. The Immoral Traffic (Prevention) Act, 1956.

e. Protection of Women from Domestic Violence Act, 2005.

f. The Infant Milk Substitutes, Feeding Bottles and Infant Foods (regulation of Production, Supply and Distribution) Act, 1992.

g. Provisions of Fruit Products Order, 1955 (issued under the Essential Commodities Act, 1955).

h. Provisions of Meat Food Products Order, 1973 (issued under the Essential Commodities Act, 1955).

i. Offences with respect to animals that find place in Schedule I and Part II of the Schedule II as well as offences related to altering of boundaries of protected areas under Wildlife (Protection) Act, 1972.

j. The SC and ST (Prevention of Atrocities) Act, 1989.

k. Offences mentioned in the Protection of Civil Rights Act, 1955.

l. Offences listed in Sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000.

m. The Army Act, 1950.

n. The Air Force Act, 1950.

o. The Navy Act, 1957.

p. Offences specified in Sections 59 to 81 and 83 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002.

q. The Explosives Act, 1884.

r. Offences specified in Sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1955.

s. Cinematograph Act, 1952.

When a court in India accepts a plea bargain, the guilty plea operates as a conviction, and the accused cannot be retried on the same offense by the same governmental entity. If the government breaches a plea bargain (for example, by arguing for a specific sentence when the agreement is that it will not do so), the accused may seek to withdraw the guilty plea, ask the court to enforce the plea bargain, or ask the court for a favorable modification in the sentence. If the accused breaches a plea agreement (for example, by refusing to cooperate in the prosecution of jointly accused persons), the prosecution may re-prosecute the accused.

Guilty plea and accompanying waivers must be voluntary!

In the Indian criminal justice system, a guilty plea that is the result of coercion or force is not acceptable to the court. The requirements discussed above are designed to provide the accused with a depth of knowledge required to make an informed decision. If, after being informed of the implications of entering a guilty plea, the accused chooses to enter that plea, it is considered to be a voluntary waiver of rights as specified above.

Factual Basis Determination

The court must also determine that there is a factual basis for the plea. Generally speaking, this is done through a "colloquy" or conversation between the accused and the judge in which the judge states the facts that the government believes it can prove and the accused states that he accepts those facts as true. The facts must support the crime to which the accused is pleading guilty.

Benefits of Pleading Guilty to the Accused

The result of a guilty plea is often a reduction in charges (e.g., murder to manslaughter). Also, at the Magistrates discretion, if the agreed upon sentence from plea bargaining is the minimum sentence allowed, the judge can choose to impose as little as half that sentence, at his own discretion. A trial never has a guaranteed outcome. No matter how strong either side's case may be, there is always the possibility of loss for either side. Pleading guilty removes the process and the uncertainty of the trial, and provides a guaranteed penalty. The stress of criminal prosecution can be great on the accused and his family, and even though a guilty plea is being entered, many accused persons may prefer to put an end to the ordeal and have some sense of finality. From a practical standpoint, if the accused is paying for private counsel, entering a guilty plea removes the costs associated with a trial. Keep in mind, however, that all accused persons have a right to a fair trial, not simply those who can afford it. The idea that entering a guilty plea costs less is simply a side effect of pleading and should not really be considered as a factor.

Negotiation Tips

The legal aid lawyer should discuss strategies and potential tactics for the negotiation, including whether to argue for a reduction of the charge (for instance, from first-degree murder to manslaughter), a specific recommendation for sentence (for example, 6 months in prison), and/or an agreement by the prosecutor not to oppose the accused's request for probation (supervision by the government for a specific period of time). It is always the accused's decision whether to enter into a plea agreement. The legal aid lawyer can only explain the benefits and drawbacks and make a recommendation.

The legal aid lawyer should consider the severity of the crime, the strength of the evidence in the case, and the prospects of a guilty verdict at trial when preparing to negotiate with the prosecutor. He should also consider collateral consequences of a guilty verdict. The prosecutor typically may not offer a plea bargain if the alleged crime is particularly heinous or the case is highly publicized or politically charged. The accused may wish to reject a plea bargain if the accused believes that the possibility of acquittal (being found not guilty at trial) outweighs the possibility of conviction.

Benefits and Harms

Plea bargaining is a controversial feature of the criminal justice system. Supporters argue that it resolves matters quickly, speeds court proceedings, reduces the number of cases in overburdened courts, guarantees convictions, reduces the number of people in overcrowded jails, helps prosecutors manage their caseloads and saves the government the time and cost of a trial. Opponents claim that plea bargaining can put pressure on accused persons to plead to crimes that they know they did not commit, and that the outcome of a plea bargain may depend strongly on the negotiating skills of the legal aid lawyer, which puts persons who can afford good lawyers at an advantage. The legal aid lawyer must be sure that the accused fully understands the rights he is waiving and the consequences he is facing as a result of a plea bargain.

It is not denied that the introduction of plea bargaining mechanism is to reduce the gigantic load of criminal cases in India but one cannot overlook its controversial features also. It can allow the prosecution to obtain conviction from the accused that would have resulted in an acquittal at trial just because of hostile witness or lack of evidence. Some of the other lacuna in the concept of plea bargaining are as under:

  • Involving the police in plea bargaining would invite coercion.
  • By involving the court in plea bargaining process the court in partiality is impingent involving the victims in plea bargaining process would invite corruption.
  • If the plead guilty application of the accused is rejected then the accused would fact a great hardship in future to prove himself innocent.
  • Thus the legal aid lawyers should in compass the following minimum requirement:
  • The hearing must take place in court the court must satisfy itself that the accused is pleading guilty knowingly and voluntarily.
  • Any court order rejecting a plea bargaining application must be kept confidential to prevent prejudice to the accused.
  • It would be like to say that the nature of this concept is in unconstitutional manner to reduce the work load but we have no other choice to reduce the over burden shoulders of our judicial work.

See India Criminal Defense Manual