PLEA MAKING - CONCEPTS, PREPARATION AND PRESENTATION OF PLEAS

• NCJ Number: 64600
• Journal: Law Institute Journal Volume: 52 Dated: (MARCH 1978) Pages: 99-107
• Author(s): G HAMPEL
• Date Published: 1978
• Length: 9 pages
• Corporate Author: Law Institute of Victoria
• Publication Format: Article
• Language: English
• Country: Australia
• Note: THIS IS A SLIGHTLY EDITED VERSTION OF AN ADDRESS GIVEN TO THE CONFERENCE ON MAGISTRATES' COURT ADVOCACY PRESENTED BY THE LAW INSTITUTE ON OCTOBER 6-7, 1977

Annotation

DEFENSE ATTORNEY CONSIDERATIONS IN PLEA MAKING UNDER CANADIAN LAW ARE DISCUSSED; DECISIONMAKING, RESEARCH AND PREPARATION, AND PRESENTATION OF THE PLEA ARE OUTLINED IN DETAIL.

Abstract

SENTENCING AND CONSEQUENTLY PLEA MAKING HAVE RECENTLY ASSUMED GREATER IMPORTANCE IN THE ADMINISTRATION OF CRIMINAL LAW. THE DECISION TO PLEAD OR NOT PLEAD GUILTY MUST BE THE FIRST CONSIDERATION OF THE ADVOCATE. MAKING AN APPROPRIATE PLEA DECISION REQUIRES COMPLETE FAMILIARITY WITH THE FACTS AND CIRCUMSTANCES OF THE OFFENSE, FULL KNOWLEDGE OF THE CLIENT'S BACKGROUND, AND A THOROUGH UNDERSTANDING OF THE RELEVANT LEGAL PRINCIPLES. THE CLIENT SHOULD BE ADVISED TO PLEAD GUILTY EVEN WHEN A POSSIBILITY EXISTS THAT HE COULD SUCCESSFULLY CONTEST THE CHARGE WHEN THE CLIENT'S BEST INTERESTS OVERRIDE THE CONSEQUENCES OF A CONVICTION. AN EFFECTIVE PLEA MUST BE WELL RESEARCHED AND PREPARED. THE PREPARER MUST CONSIDER A FULL ACCOUNT OF THE CIRCUMSTANCES OF THE COMMISSION OF THE OFFENSE; THE HISTORY OF EVENTS SINCE THE COMMISSION OF THE OFFENSE; AND THE CLIENT'S EMPLOYMENT, HEALTH, MARITAL, AND LEGAL STATUS. RESEARCH AND PREPARATION SHOULD INCLUDE CONFERENCES WITH THE CLIENT, SPOUSE, CHARACTER WITNESSES, DOCTORS, PROBATION OFFICERS, AND PARENTS, WHEN DEEMED NECESSARY. THE ADVOCATE MUST BE ABLE TO REFER TO AND DISCUSS CONCEPTS OF PUNISHMENT SUCH AS RETRIBUTION, REHABILITATION, DETERRENCE, THE PROPHYLACTIC APPROACH, AND THE TARIFF CONCEPT. PLEA PRESENTATION MUST BE COURAGEOUS, BALANCED, AND PERSUASIVE. ADDITIONAL CONSIDERATIONS OF THE ADVOCATE WHEN CONSIDERING PLEAS AND PLEA PRESENTATION ARE WHETHER TO CALL THE ACCUSED AS A WITNESS, THE QUALITY AND QUANTITY OF CHARACTER EVIDENCE, AND RELATING ANY PREVIOUS CONVICTIONS TO THE PLEA. (LWM)