1981 Ariz. St. L.J. 557 (1981)
Investigation of Facts in Preparation for Plea Bargaining

handle is hein.journals/arzjl1981 and id is 575 raw text is: Investigation of Facts in
Preparation for Plea Bargaining
I. INTRODUCTION
Plea bargaining' plays an important role in the American system of
criminal justice. Guilty pleas dispose of 85% to 90% of all criminal cases.
A plea agreement may contain elements of charge reduction, sentence re-
duction, or a combination of both. In charge reduction, the accused pleads
guilty in exchange for the prosecutor reducing the offense to one with less
serious consequences$ or dropping one or more charges when multiple
charges are outstanding.' In sentence reduction, the prosecutor agrees to
recommend probation, leniency in sentencing, or perhaps a particularly
light sentence in return for the defendant's guilty plea.' A judge, however,
I. This term will be used interchangeably with plea negotiation throughout this article. No nega-
tive or positive connotation should be associated with either term.
2. See D. NEWMAN, CONVICTION, THE DETERMINATION OF GUILT OR INNOCENCE WITHOUT
TRIAL 3 (1966); Allen, Central Problems of American Criminal Justice, 75 MICH. L. REv. 813, 819
(1977); Alschuler, The Prosecutor's Role in Plea Bargaining, 36 U. CHI. L. REV. 50 (1968-1969);
Borman, The Hidden Right to Direct Appeal from a Federal Plea Conviction, 64 CORNELL L. REV.
319 (1979).
3. The defendant may plead guilty to a lesser offense included within the existing charge. This is
the classic form of plea bargain, and it guarantees reduction of the statutory maximum sentence to
which the accused is exposed. A. AMSTERDAM, B. SEGAL & M. MILLER, TRIAL MANUAL 3 FOR THE
DEFENSE OF CRIMINAL CASES § 211, at 1-196 (3d ed. 1974) [hereinafter cited as TRIAL MANUAL].
Another option is a plea to a lesser charge which is not included within the original charge. As with
every guilty plea, there must be a factual basis for the charge to which the defendant pleads guilty.
E.g., ARIZ. R. CRIM. P. 17.3, 26.2(a). Generally the defendant must supply facts to the court consti-
tuting guilt of the charge in question. The Supreme Court, however, has permitted the defendant to
avoid admission of his conduct despite his guilty plea if the state supplies the court with a factual
basis for the charge which the state asserts that it could prove at trial. North Carolina v. Alford, 400
U.S. 25 (1970). See TRIAL MANUAL, supra, § 215, at 1-202.
4. TRIAL MANUAL, supra note 3, § 211, at 1-197. See generally Bosco, Some Comments Con-
cerning the Roles of Judges, Prosecutors and Defense Attorneys in Plea Bargaining, 22 TRIAL LAW.
GUIDE 377, 407-08 (1979); Feeley, Pleading Guilty in Lower Courts, 13 LAW & Soc'Y REV. 461,
461-64 (1979); Jones, Negotiation, Ratification, and Recission of the Guilty Plea Agreement: A Con-
tractual Analysis and Typology, 17 DUQ. L. REV. 591, 601-05 (1978-1979); Klonoski, Mitchell &
Gallagher, Plea Bargaining in Oregon: An Exploratory Study, 50 ORE. L. REV. 114, 115 (1971);
Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U. PA. L.
REV. 865, 868 (1964).
5. See TRIAL MANUAL, supra note 3, § 211, at 1-197 to -199. See generally Alschuler, Sentencing

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