Stipulations in Criminal Cases
![handle is hein.journals/ciiafen10 and id is 78 raw text is: STIPULATIONS IN CRIMINAL CASES
By Paul C Giannelli & Edward J. Imwinkelried
A stipulation is a voluntary agreement between the
opposing parties concerning the disposition of some
matter before the court.' Stipulations range from infor-
mal, impromptu oral concessions made during trial to
complicated written agreements developed in the pretrial
process. In some cases a statute or court rule governs the
use of stipluations. For example, a Texas statute provides
for the use of stipulations in certain cases if the defendant
consents in writing, in open court, to waive the appear-
ance, confrontation, and cross-examination of witnesses,
and further consents either to an oral stipulation of the
evidence and testimony or to the introduction of testi-
mony by affidavits, written statements of witnesses, and
any other documentary evidence in support of the judg-
ment of the court.2
The primary function of a stipulation is to expedite the
trial, a goal which has been endorsed in a number of
cases.3 In James v. State', the court noted that [iun this
day of crowded dockets and crushing case loads, stipula-
tions should be favored, if not encouraged. Indeed, one of
the recognized purposes of pretrial conferences is to
encourage stipulations.'
Stipulations also are used for tactical reasons. Fre-
quently, defense counsel offer to stipulate in order to
minimize the impact of potentially damaging evidence.
Thus, counsel may offer to stipulate to a defendant's prior
convictions when they could be established easily by court
records;6 to the identity of a seized substance such as
heroin to prevent the trial from focusing on the most
damning part of the evidence;' to the cause of death
when the prosecutor attempts to introduce gruesome
photographs of the victim;' or to a government expert's
qualifications when those qualifications are impressive.9
Although stipulations are highly useful, the courts have
imposed common-law and constitutional restrictions on
their use. The purpose of this brief article is to familiarize
defense counsel with those restrictions. The first part of
the article surveys the restrictions on the various types of
stipulations, beginning with stipulations of fact. The
second part analyzes the problem of the enforceability of
stipulations.
THE TYPES OF STIPULATIONS
A. Stipulations of Fact
In General
A trial court will usually accept stipulations of fact
between the parties. In an extraordinary case, however,
when the stipulated fact is either irrelevant or amounts to
a conclusion of law, the court may reject the stipulation.0
If the court accepts the stipulation, the party who has the
burden of proof on the stipulated fact is relieved of the
responsibility of establishing that fact through the intro-
duction of formal proof. In this respect, a stipulation
serves a function similar to that of judicial notice.
Once the parties stipulate to a fact, controverting evi-
dence is inadmissible, and the jury will be instructed to
accept the fact as established. As one court has remarked, a
stipulation is considered an express waiver ... conceding
for the purposes of the trial the truthfulness of some
alleged fact . .. [A] stipulation of facts when entered into
is in lieu of testimony or evidence that would be given
during the course of the trial. The parties, in effect, have
agreed that the evidence contained in the stipulation
would have been brought forth at trial. Once a stipulation
is entered into between the parties it is the generally
accepted rule that the facts so stipulated are conclusive
upon both the parties and the tribunal. Moreover,
parties who did not enter into the stipulation may use the
stipulation as an evidentiary admission.'
Of course, a party is bound only by the facts specified in
the stipulation, and thus a failure to pay close attention to
the tenor of a stipulation may prove troublesome. For
example, in State v. Saunders, '3 the defendant stipulated
only that a government chemist had examined plant
material and had found the material to be marijuana. The
trial judge erroneously assumed that the defendant had
stipulated that the marijuana had been sold by the defend-
ant. The judge's instruction conveying that erroneous
assumption to the jury constituted reversible error.
As previously stated, if a stipulation is accepted, evi-
dence tending to establish or rebut the stipulated fact will
be excluded. Consequently, counsel may be unwilling to
stipulate because a colorless admission will often lack
the probative force of the available evidence. For this
reason most courts do not require the parties, typically the
prosecutor, to accept an offer to stipulate; when a defend-
ant pleads not guilty, the State [has] the right to prove
every element of the crime charged and [is] not obligated
to rely on the defendant's stipulation.' Similarly, a
defendant may reject a codefendant's offer to stipulate.16
Nevertheless, there are risks in rejecting a defense offer
to stipulate. In United States v. White, for instance, the
defendant was willing to stipulate at a crucial stage of the
trial that he had typed and signed a letter on the same
typewriter used to write other letters involved in a mail
fraud scheme. In §pite of the offer to stipulate, the
government presented a probation officer's testimony to
prove that the defendant had typed the letter - a method
of proof which revealed the defendant's prior conviction
to the jury. In reversing the conviction, the appellate court
emphasized that the probation officer's testimony was
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Stipulations in Criminal Cases
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