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  1. #21
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting Taxing Matters
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    Whether the responses to the judge's questions in the plea hearing would be considered "truthful" depends on what is asked, what the response is, and what the actual facts are. Depending on exactly what is asked there may be no lie. Even if there is a lie, it is not necessarily perjury. Perjury is generally the giving of false testimony while under oath in court. But defendant in the plea hearing is not testifying on the stand and may not be under oath. In the jurisdictions I practice, the statements made at the plea hearing are taken under oath and would not be subject to perjury. Even if that was a possibility, an Alford or nolo contendre plea could be used for the plea deal instead. In short, there is certainly a way to do the plea deal even when the defendant is actually not guilty that would not amount to perjury.



    i know what perjury is. One need not be on the stand to be under oath. One simply needs to take an oath, or more simply, attest that statements made to the court are truthful. Often times a defendant pleading from the defendants table is advised his statements are accepted as the defendant attesting to the truthfulness of the statements. That would make a lie perjury.

    Here is an Indiana case where the defendant was provided what is a typical plea agreement. Defendant argued he did not receive what was agreed upon and had right to seek resentencing or to withdraw his guilty plea. He lost his
    https://law.justia.com/cases/indiana...880a254-6.html


    I disagree. Accepting a plea of guilty is no more a lie than a defendant pleading not guilty when, in fact, he is guilty. Can you find me even one appellate decision that states pleading guilty when the defendant is innocent is perjury?
    I disagree. While they appear to be the same, the initial not guilty plea is merely a formality required to instigate a prosecution. I (as well as others I have talked with) have always had an issue with one pleading not guilty when in fact they were and were quite aware of it. It is not intended to be testimony to ones innocence or guilt but simply the necessary response to cause the state to prove the guilt or the defendant. I believe there should be some other response to state one does not intend on pleading guilty but hundreds of years of practice won’t be changed because of my feelings on the matter.

  2. #22
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting jk
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    i know what perjury is. One need not be on the stand to be under oath. One simply needs to take an oath, or more simply, attest that statements made to the court are truthful. Often times a defendant pleading from the defendants table is advised his statements are accepted as the defendant attesting to the truthfulness of the statements. That would make a lie perjury.
    It is perjury if it violates the perjury statute, and not all lies told in court amount to perjury. The breadth of perjury statutes vary significantly from one jurisdiction to the next. One has to look at the particular statute that applies in that jurisdiction and what is occurring in the plea hearing to determine if the statements might be subject to perjury charges if untruthful. In some jurisdictions and situations they would, in others they would not be. In any event, as I stated before, if there is a risk of perjury there are ways, like an Alford or nolo contendre plea, to deal with that. Besides, as a practical matter the prosecution isn't going to pursue a perjury charge on a guilty plea.

    Quote Quoting jk
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    Here is an Indiana case where the defendant was provided what is a typical plea agreement.
    But that case has nothing to do with whether the guilty plea would be perjury if the defendant was innocent.

    Quote Quoting jk
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    I disagree. While they appear to be the same, the initial not guilty plea is merely a formality required to instigate a prosecution.
    While certainly different consequences flow from the plea that is entered, you've not explained how they are different when it comes to perjury just to the plea itself. If a not guilty plea is not subject to perjury why would a guilty plea be subject to perjury? I am speaking simply of entering the plea itself rather than stating actual facts, which is a different matter.

    Quote Quoting jk
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    I (as well as others I have talked with) have always had an issue with one pleading not guilty when in fact they were and were quite aware of it. It is not intended to be testimony to ones innocence or guilt but simply the necessary response to cause the state to prove the guilt or the defendant. I believe there should be some other response to state one does not intend on pleading guilty but hundreds of years of practice won’t be changed because of my feelings on the matter.
    I believe you have stated before on this forum your dislike and opposition to the plea bargain process, and I think that opposition is coloring your views on the issue of perjury when entering a plea. You don't like the plea bargain process and I suspect would find any arguments that would undercut it to be persuasive. There are certainly reasons to dislike the process and ways that it could be improved. But I'm not seeing support for your position that a guilty plea when the defendant is innocent would in all cases be perjury. You have to look at what is involved in the plea hearing, what that jurisdiction's law on perjury is, and what statements the defendant actually makes in the course of the hearing.

    And, as has been stated, if the defendant is really concerned about that possibility, there are ways to do the plea deal that would not run the perjury risk.

  3. #23
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting jk
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    But they are often required to allocute. Even without allocution, stating you are guilty when you are actually innocent is lying which is perjury when under oath.
    I have seen allocutions on TV crime dramas, but not once in a criminal court in CA. I suppose they happen, but not in the cases where I have been present for pleas or sentencing. This may be more common in some states than others.

    As for the DA agreeing to a deal, well, yeah, they have to agree to deal out here. They may not be able to mandate the sentence - only offer a recommendation - but, the defense and the court cannot agree to a deal without the DA's acquiescence. The mechanics of plea deals have idiosyncrasies that vary by state.
    **********
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  4. #24
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    jk, if the police recruit a 20 year old to attempt to purchase alcohol in a so called "sting" why isn't the 20 year old violating the law?? They are guilty, right?

  5. #25
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting RJR
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    jk, if the police recruit a 20 year old to attempt to purchase alcohol in a so called "sting" why isn't the 20 year old violating the law?? They are guilty, right?
    In my state they have carved out specific exceptions under the law for such underage stings - I believe many/most states have done something similar or have found exceptions in existing law to permit them. There are also undercover ops with drugs, solicitations (for sex, drugs, murder-for-hire, etc.), larceny, etc., that are all exempted as well under a variety of statutes and exceptions.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  6. #26
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Right, basis, "Immunity from Prosecution". My point was to jk a defendant can not be guilty of perjury if they plead guilty to a crime they did not commit, since it is a government deal. Can you see a Prosecutor charging a defendant with perjury after a plea deal, express or implied immunity? I've never read a plea bargain before, but isn't this accepted by both parties?

  7. #27
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    All this talk about perjury in a courtroom is quite humorous.

    Keeping lying out of a courtroom would be like trying to keep sex out of a brothel. They all do it and it's how most cases are won.

  8. #28
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting CONNOR99
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    All this talk about perjury in a courtroom is quite humorous.

    Keeping lying out of a courtroom would be like trying to keep sex out of a brothel. They all do it and it's how most cases are won.
    I suppose you have some objective and impartial source for such a claim?
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  9. #29
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting cdwjava
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    I suppose you have some objective and impartial source for such a claim?
    Please, a retired police officer has not seen rampant lying in courtrooms?

    I just came out of a five day trial and it was throughout the trial. Even cleverly disguised/worded by counsel. It was an utterly disgusting experience.

    The Bible, the swearing in and the Pledge of Allegiance is a mockery in a courtroom.

  10. #30
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    Default Re: Why Would a Public Defender Choice to Make Plea Bargin

    Quote Quoting CONNOR99
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    Please, a retired police officer has not seen rampant lying in courtrooms?

    I just came out of a five day trial and it was throughout the trial. Even cleverly disguised/worded by counsel. It was an utterly disgusting experience.

    The Bible, the swearing in and the Pledge of Allegiance is a mockery in a courtroom.
    You're confusing the dance that attorneys do with lying. It is the defense counsel's job to cast doubt on the state's case, so they tend to obfuscate, twist, and hypothesize all the time. But, they are not testifying and do not offer direct evidence of their own. I have seen a great many stunning directions taken by the defense - and even a few by the prosecution. But, lying - as in the intentional offering of false testimony? Only by defendants who take the stand and the witnesses that support them.

    Oh, and in my state, we stopped using the Bible well before I became an officer, and stopped using the phrase (when being sworn in), "So help you God," a couple decades ago. And, while I suppose there may be a Pledge of Allegiance said in some courtrooms out here, I've yet to see it.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

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