Intersections Between In-Court Procedures and the Production of Guilty Pleas
| Published date | 01 April 2009 |
| Date | 01 April 2009 |
| DOI | http://doi.org/10.1375/acri.42.1.1 |
| Subject Matter | Articles |
Intersections Between In-Court Procedures
and the Production of Guilty Pleas
Sharyn Roach Anleu and Kathy Mack
Flinders University, Australia
In Australia (as elsewhere) most criminal defendants plead guilty and do
not contest the charges at trial. Our research suggests that guilty pleas
can result from an intersectional process, in which in-court events inter-
act with out-of-court activities and discussions. This article draws on an
observational study of criminal matters in Australian lower courts. It
examines the early stages of in-court proceedings, in particular the ways
in which the judicial officer’s — here the magistrate — decisions about
adjournments, contribute to and are driven by the guilty plea production
process.While Australian magistrates and judges have no direct role in or
even knowledge of the substance of plea or charge bargaining, they can
influence the circumstances for a prompt guilty plea.
Keywords: adjournments, courts, guilty pleas, magistrates
In Australia (as elsewhere), most criminal defendants plead guilty and do not
contest the charges at trial (Baldwin & McConville, 1977, 1979; Mack & Roach
Anleu, 1995; Mather, 1974, 1979; Sentencing Advisory Council [Victoria], 2007).
The key active role of the judge or magistrate is to sentence the defendant. In many
jurisdictions, at least two-thirds of defendants, and often more, are sentenced
following a plea of guilty (Australian Bureau of Statistics, 2008, pp. 14, 26). While
Australian magistrates and judges have no direct role in or even knowledge of the
substance of plea or charge bargaining, they are aware that a contested criminal trial
is unusual. This article demonstrates the ways in which they can facilitate the
production of a guilty plea without direct intervention, thus preserving the princi-
ples of judicial neutrality and the voluntariness of the guilty plea.
Defendants plead guilty for a variety of reasons, including: to benefit from any
sentence discount, a sense of guilt or remorse, wanting to get the matter out of the
way, shame, or a desire to protect another person. Guilty pleas may occur with or
without legal advice. Plea negotiations between the prosecutor and a defendant’s
legal representative may result in reduced or different charges to which the defen-
dant will plead guilty. The most frequent type of plea bargaining in Australia is
discussions between defence and prosecution resulting in a charge reduction, which
usually occur in the defendant’s absence and outside the formal court proceedings
Address for correspondence: Sharyn Roach Anleu, PO Box 2100, Adelaide SA 5001,
Australia. E-mail: judicial.research@flinders.edu.au
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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VOLUME 42 NUMBER 1 2009 PP. 1–23
SHARYN ROACH ANLEU AND KATHY MACK
(Findlay, Odgers, & Yeo, 2005; Mack & Roach Anleu, 1995; Seifman & Freiberg,
2001). Australian law is clear that judicial officers have no role in any discussions
between the defence and prosecution regarding the charge, plea or likely sentence
(GAS v The Queen, 2004). The risk of perceived or actual coercion and the threat
to impartiality and detachment militate against judicial participation in plea negoti-
ations (Mack & Roach Anleu, 1995).
Nonetheless, the judicial officer can play a significant role in the production of
guilty pleas. A magistrate’s decisions and actions can be essential for plea discus-
sions to occur and for decisions about plea to be made. A court observation study
conducted in the Australian magistrates courts1 indicates that the adjournment
(called a ‘continuance’ in the United States) provides a critical intersection
between formal court proceedings and the informal discussions, interactions and
considerations that might produce guilty pleas. A request for an adjournment
provides the magistrate an opportunity to make explicit expectations about the
progress and direction of a matter, especially if it has been adjourned previously.
However, the magistrate’s role is at a distance, in order to maintain judicial impar-
tiality while at the same time facilitating the conditions that can produce guilty
pleas. The key active role of the judge or magistrate is to sentence the defendant.
Judicial officers sometimes have a more active or interventionist role in the
various formal pre-trial conferences or contest mention systems that exist in several
Australian and other jurisdictions. The emphasis in these processes is to clarify the
contested issues and attempt their resolution. In some cases, the magistrate might
intimate or indicate the likely sentence. This can have the effect of producing a
guilty plea, either immediately or following a short adjournment (Cannon, 2008;
Mack and Roach Anleu, 1995). These specialised pre-trial procedures are usually
listed separately and are not heard as part of the general criminal list, which is the
subject of this research.
This article investigates magistrates’ decisions regarding adjournments with
particular attention to the ways in which they articulate expectations about the
purpose of the adjournment, and the ways those expectations relate to the produc-
tion of guilty pleas.
The following section discusses the role of guilty pleas in the criminal justice
system, and considers the ways in which adjournments can play a critical role in the
production of a guilty plea.
Guilty Pleas, Conceptions of Justice and Adjournments
The general legal principle is that courts can accept a guilty plea so long as it is the
voluntary and free decision of the defendant: ‘[I]t is the accused person, alone, who
must decide whether to plead guilty to the charge preferred. That decision must be
made freely’ (GAS v The Queen, 2004, at 210). ‘A plea of guilty must not be
induced in a way that could be regarded as over-bearing the free will of the defen-
dant’ (R v KCH, 2001, at 235–36). In the US, ‘a conviction based on a coerced
guilty plea violates a defendant’s right to due process’ (Waltz, 1970, p. 521).
Despite this legal requirement, much of the research on the practical processes
leading to a plea of guilty focuses on the various pressures or incentives, particu-
larly from legal advisers, that induce, persuade or influence a defendant to change
2
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
LOWER COURTS AND GUILTY PLEAS
the plea to guilty (Baldwin & McConville, 1977; 1979; McCoy, 1993; Schulhofer,
1994; Tata, 2007).
In many jurisdictions, judicial participation in the production of pleas, either via
involvement in negotiations with the defence or prosecution, or in direct communi-
cation with a defendant, is considered improper for two main reasons.
First, judicial preference may coerce or influence a defendant to plead guilty
thereby undermining the requirement that guilty pleas must be free and voluntary.
As the judicial officer has ultimate authority to make decisions about a matter,
especially regarding sentence, judicial preference may unfairly influence the defen-
dant to decide to plead guilty, even when he or she has an arguable defence.
Second, such active involvement deviates from the formal judicial role as neutral,
detached and impartial and may compromise judicial independence by illegiti-
mately constraining sentencing discretion. Second, judicial preference may coerce
or influence a defendant to plead guilty thereby undermining the requirement that
guilty pleas must be free and voluntary. As the judicial officer has ultimate authority
to make decisions about a matter, especially regarding sentence, judicial preference
may unfairly influence the defendant to decide to plead guilty, even when he or she
has an arguable defence.
Nonetheless, guilty pleas in Australia (as well as England and Wales, Scotland
and New Zealand) take place in a legal context in which consideration of a reduced
sentence in recognition of a guilty plea is mandated by statute or case law in all
jurisdictions. The general principle is that the earlier the plea of guilty the larger
the reduction in sentence, though consideration of aggravating factors might lessen
the benefit of an early plea (Australian Law Reform Commission, 2005; Sentencing
Advisory Council [SAC], Victoria, 2007).2 Apart from the sentence discount, there
are no sentence guarantees and formal judicial sentence indication is rare (SAC
Victoria, 2007). This situation differs from many US jurisdictions where presiding
judicial officers frequently have some formal or explicit input into plea bargaining
discussions and agreements (Emmelman, 1996, 1998; Maynard, 1984b). The
judicial officer can exert pressure and influence on the legal representatives or
guarantee a sentence in order to advance settlement (Emmelman, 1996).
In the Australian context, the adjournment can be a critical nexus between the
formal, in-court, pre-trial processes and the informal, out-of-court processes that
lead to a guilty plea. Magistrates’ adjournment decisions are part of a constellation
of decisions made in- and out-of-court by various participants — prosecutors, police,
defence lawyers and people defending criminal charges — in a criminal justice
system in which most charges are resolved by guilty plea. ‘The responses of social
control agents to individual cases are fundamentally shaped by reference to larger,
organizationally relevant wholes’ (Emerson, 1983, p. 427). Outcomes are the result
of diverse participants doing their jobs, and performing the role of magistrate entails
responding to or managing ‘several different contradictory objectives’...
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