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59 Ct. Rev. 44 (2023)
Judicial Strategies for Evaluating the Validity of Guilty Pleas

handle is hein.journals/ctrev59 and id is 44 raw text is: 

Judicial Strategies for Evaluating

            the Validity of Guilty Pleas

                          Kelsey  S. Henderson,  Erika N. Fountain, Allison D. Redlich & Jason A. Cantone

  n April 2022, the United States Court of Appeals for the Sixth
  Circuit in  In re United States affirmed that federal judges'
  involvement  in plea negotiations violated Rule 11 of the Fed-
eral Rules of Criminal Procedure.' In the case, the district court
judge, after notification that both parties were negotiating a plea
agreement, informed  the parties that the court had a longstand-
ing 'practice' of rejecting plea agreements with certain plea-bar-
gaining terms such as waivers of the right to appeal. The court
later rejected the agreed-upon bargain that included the disap-
proved  waivers. On  appeal, the U.S. Court of Appeals for the
Sixth Circuit found that the district court clearly overstepped its
authority2 and while the district court's conduct may have been
motivated in good faith by its concern for defendants, there is 'no
good  motives exception' to Rule 11.3
   While  the federal courts prohibit the type of judicial involve-
ment  in the case above, our research identifies how state judges
view their role in plea negotiations. U.S. states vary in their guid-
ance. To date, 18 states prohibit judicial involvement and restrict
the judge's involvement to confirming the constitutionality of the
plea during  the plea hearing (i.e., is the defendant's decision
knowing,  intelligent, and voluntary-tenets established in Boykin
v. Alabama.)4 The  remaining states either allow some form  of
enhanced  involvement  or make  no  mention  of the practice in
state statutes. For example, in Oregon, any other judge [than the
trial judge], at the request of both the  prosecution and  the
defense . . . may participate in plea negotiations.i In Oregon,
such involvement  is quite customary in the form of judicial set-
tlement conferences, which in some  jurisdictions are a requisite
of setting a trial date. Although involvement in plea negotiations
may  not take place in all jurisdictions, in both the federal courts
and state courts, judges play an important role in the plea agree-
ment process (i.e., the plea hearing). However, restricting judicial

involvement  to the plea hearing comes with the assumption that
this process gives judges adequate opportunity to carefully eval-
uate components  of the plea such as the factual basis, voluntari-
ness of the defendant's decision, and defendants' understanding
of their rights waived.6 This  limited involvement  raises two
important  questions: (1) Is the plea colloquy  doing  what  it
should, and  (2) If it is not, what are the implications for defen-
dants, the validity of pleas, and the fairness of plea bargaining?
   As social scientists, these are the types of questions that we
have explored over the years.7 In our most recent work, we sur-
veyed  state court judges from 33 states regarding their expecta-
tions of the parties' responsibilities (e.g., whose responsibility is
it to confirm the factual basis of the plea) and their practices
with the plea colloquy (e.g., indicators they rely on to determine
if a plea is made knowingly, intelligently, and voluntarily).8 In
that study, we examined judges' use of different strategies associ-
ated with the evaluation of guilty pleas. Below, we expand from
that study to highlight how  psychological research can better
inform state court judges' decisions.

   As this article focuses on the validity of pleading guilty and
the substance of plea colloquies, we begin with a brief discussion
of roles and responsibilities in this domain.9 Specific to plea hear-
ings, judges  who  responded   to our  survey  overwhelmingly
believed it is their role to ensure the validity of guilty pleas (See
Graph  1). However, less than one-third of judges believed it was
their responsibility alone to assess plea validity; the majority of
judges believed they share this responsibility with defense attor-
neys  and  prosecutors. On  average, judges perceived  defense

Authors Note: We are extremely grateful to the judges who reviewed our sur-
vey materials and the judges who took the time to participate in our study. As
researchers, we recognize the importance of hearing the perspectives and
experiences of judges (and others in the legal system); gaining this insight helps
psychological and criminological research to be more impactful and helpful.
The results presented here are based on a survey of state court judges con-
ducted in February and March 2020. Thank you to the American Judges Asso-
ciation for sharing this research opportunity. This work was completed outside
of Dr Jason Cantone's position at the Federal Judicial Center The views
expressed herein are those of the authors and are not the views of the Federal
Judicial Center or its board.

1.  In re United States, 32 E4th 584, 588 (6th Cir. 2022); see also FED.
    R. CRIM. P 11(c)(1).
2.  32 F4th at 588-590.
3.  Id. at 594.
4.  Boykin v Alabama, 395 U.S. 238 (1969); see Tina M. Zottoli et
    al., State of the States: A Survey of Statutory Law, Regulations and Court
    Rules Pertaining to Guilty Pleas Across the United States, 37 BEHAV SCI.
    & L. 388, 414-15 (2019).

5. OR. REV STAT. § 135.432(1)(b) (2021).
6. For a greater discussion of expanding judicial involvement, see Jed
   S. Rakoff, Why Innocent People Plead Guilty, N.Y. REV BooKs (Nov.
   20, 2014); Jenia Iontcheva Turner, Judicial Participation in Plea Nego-
   tiations: A Comparative View, 54 AM. J. COMPAR. L. 199 (2006); and
   Jenia I. Turner, Transparency in Plea Bargaining, 96 NOTRE DAME L.
   REV 973 (2021).
7. See Allison D. Redlich, The Validity of Pleading Guilty, in 2 ADVANCES
   IN PSYCHOLOGY AND LAW 1 (Brian H. Bornstein & Monica K. Miller
   eds., 2016).
8. Kelsey S. Henderson et al., Judicial Involvement in Plea-Bargaining, 28
   PSYCH. PUB. PoIY & L. 356, 358 (2022). Additionally, we asked a
   number  of questions about judges' experiences and perceptions of
   expanded judicial involvement (i.e., participation in plea negotia-
   tions). For example, judges were asked about their perception of the
   benefits and risks of such involvement. A discussion of those find-
   ings is outside the scope of this paper. However, interested readers
   can find more on those results by emailing the authors.
9. Id. The graphs and analyses below stem from the data in our survey
   of state judges.

44  Court Review  - Volume 59

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