This is consistent with the directions by the Court of Appeal that ensured there be no appearance of plea bargaining. What we call it is make representations. Clearly, there is a sturdy endeavour to disguise plea bargaining in open court and thereby hide it from the public. More importantly, it is a practice that the courts know occurs but do not often intervene in. Plea negotiations are always initiated by the defence in Hong Kong. There are two ways that defence lawyers contact the prosecution about plea bargaining.
Guilty Pleas in Federal Criminal Cases: Frequently Asked Questions
Primarily this is done through an assessment of the evidence and applying it to the charges that the defendant is facing. For instance in some cases, there are several charges, but evidence for one or two charges is weaker, another one or two stronger. Or the defendant has an admission for charge one and two but not three and four. These are in terms of evidence, we would think about them. Maybe we ask them to drop charges three and four and only charge one and two for a guilty plea.
If there are many charges, we guess how many they would accept.
Just Cause or Just Because Prosecution & Plea-Bargaining R
Letters to the prosecution may not be a one-off occurrence, rather plea bargaining can be a process that necessitates various letter exchanges until both sides come to a deal. In writing letters, defence lawyers would assess the case and make their case to the prosecution for a plea bargain. However, not all cases permit so much time for assessment. This is especially true in duty lawyer cases. Duty lawyers are basically public defenders and, in Hong Kong, there are no full-time public defence lawyers. Duty lawyers are drawn from a list of private practising solicitors or barristers that assist the scheme in a particular magistrate court for a flat fee.
The duty lawyer appears in a particular court for either a full day or half a day. They are assisted by court liaison officers, who are full-time staff of the Duty Lawyer Scheme. The problem of the Duty Lawyer Scheme is that the assigned lawyers usually do not meet their clients until just before the court commences. In a particular day, each duty lawyer is responsible for representing multiple cases, as one barrister who essentially acts as a duty lawyer pointed out:.
You can count; I begin seeing defendants at 9 a. If I need to do ten cases, on average that would be 5 minutes to 6 minutes. That would certainly not be much. In terms of plea bargaining, not only do duty lawyers not have time to give the case considerable thought, there is also not enough time to draft a letter to the Department of Justice. Plea bargaining in these situations is conducted more informally, through face-to-face conversations with the acting prosecutor in court and getting approval by telephone.
Another solicitor described this form of informal plea bargaining:. You keep making phone calls.
Stand down the case. Send it immediately upstairs to the office. If a plea bargain is accepted, then the prosecution would amend the charges quickly and the case would be processed in court on the same day. Although plea bargaining may be more hurried for duty lawyers, regardless of whether they are acting privately or on behalf of the Duty Lawyer Scheme, defence lawyers held the same views towards plea bargaining in Hong Kong. As discussed, the prosecution can revise charges after plea negotiations with the defence.
Charge bargaining typically takes two forms: dropping certain charges in multiple-charge cases or reducing a charge to a lesser offence. Dropping charges occurs in the situation described above, where the accused is faced with multiple charges, and in exchange for guilty pleas on certain charges, the prosecution agrees to drop the other ones.
The second form of charge bargaining ensues when a certain charge is replaced with a lighter charge. Most criminal offences are defined along a spectrum of severity, such as from common assault to assault causing grievous bodily harm, and from drug possession to drug trafficking.
Prosecutors can drop a charge to a lesser one, as one barrister illustrated this type of charge bargaining in a typical case of assault:. You go to the prosecutor and say your case is wounding, all outer layers broken, but it may only be a scratch … If you charge with assault occasioning actual bodily harm, I will plead. Here, the facts of whether the act that occurred is enough to constitute wounding under criminal law are contested by the defence. Therefore the defence would strike a deal with the prosecution and have the defendant plead guilty.
Another type of plea bargaining, that occurs mainly in the US is sentence bargaining. This occurs when the prosecutor guarantees certain sentences for a defendant who pleads guilty. However, charges are related to sentences, so through charge bargaining, both the defence and the prosecution are fairly certain that plea bargaining would result in a more lenient sentence.
One barrister who almost exclusively practises criminal law said:. We will have looked at the charges. We will know the ball park figure of the sentence after conviction at trial … In other charges there may be precedents. For example, breach of condition of stay, the Court of Appeal has said 15 months etc. These are more commonplace so we would know. Because of precedents, sentencing guidelines in these cases, and general experience, controlling the charges can effectively control sentences as well. This is where the prosecution amends the facts of the case to reduce its aggravating features.
By so doing, the accused would be perceived better by the court and receive a more lenient sentence. A final type of plea bargain is the bind over order. A bind over order is typically not considered as a type of plea bargain because defendants do not actually plead guilty to them.
In order to bind over the defendant, the court must be precise about what acts the defendant is prohibited from doing and the duration of how long that prohibition lasts. The main benefit for the accused is that, because no plea is entered, and the prosecution offers no evidence, even if the accused admitted to wrongdoing there would be no criminal record.
Bind over orders are mainly used for minor offences such as fighting in a public place.
There is, however, a lack of a standard in when to proceed with a bind over, and it is often left up to negotiations between the defence and prosecution. Assurance of voluntariness was underscored in the Turner guidelines and subsequently reiterated in Hong Kong case-law. This point was stressed by one barrister, who said:.
This is their mandate from heaven.
Plea - Wikipedia
We cannot take it away and must respect that. The way that defence lawyers in Hong Kong asserted that they do not pressure defendants into pleading guilty is by defining their role as lawyers as mere advisors to their clients. Another barrister remarked that he did not venture into asking whether his clients actually committed the alleged offence s :. It is not my role to know.
I just follow my instructions to act. The court is not here to find out the truth, this is an ideal. It can only take the evidence of both sides and decide.
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All I need is your story, and retell your story in court. By emphasizing that they act only as advisors and follow instructions, defence lawyers distance themselves from any potential allegations of them pressuring their clients to plead guilty. Both solicitors and barristers contended that they are abiding by their roles as set out by their respective professional codes of conduct.
It is thus imperative that lawyers consider carefully their advice in recommending a plea.