Prepared by Sohan S. Desai
UCWR
December 1999
TABLE OF CONTENTS
I. Introduction and Summary of Conclusions .. 1
A. Issue 1
B. Conclusion . 1
A. LEGAL BASIS FOR PLEA BARGAINING ... 3
1. Fundamentals of Plea Bargaining ... 3
2. The Prosecutor Has the Authority to Engage in Plea Bargaining . 5
a. Plea Bargaining is Permissible Because It Does Not Contravene the Policy Prohibiting Granting Immunity and Because Neither the Statute nor the Rules of Evidence and Procedure Prohibit the OTP From Plea Bargaining . 6
B. WHEN AND HOW THE OFFICE OF THE PROSECUTOR MAY PLEA BARGAIN WITH A SUSPECT AND AN ACCUSED.. 11
1. Pre-Indictment Plea Bargaining . 12
2. Post-Indictment Plea Bargaining 13
A. PLEA BARGAINING: PROSECUTORIAL CONSIDERATIONS . 15
B. PLEA BARGAINING SYSTEMS IN CANADA AND THE UNITED STATES 17
1. Similarity between the roles of the prosecutor and judge in the ICTR and the United States criminal justice systems .. 18
2. Similarity between the role of the judge and prosecutor in the ICTR and the Canadian criminal justice systems 19
3. Fundamental Observations on Plea Bargaining in the United States .. 22
4. Fundamental Observations on Plea Bargaining in Canada 25
VOLUME I
STATUTES:
1. Statute of the International Tribunal for Rwanda, annexed to S.C. Res. 955, U.N. Scor., 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (1994).
2. International Criminal Tribunal For Rwanda: Rules of Procedure and Evidence, U.N. Doc. ICTR/3. Rev. 2 (1996).
UNITED NATIONS DOCUMENTS:
3. United Nations, International Criminal Tribunal for Yugoslavia, Press Release dated 5 Mar. 1998, The Prosecutor v. Erdemovic, Sentencing Judgment Case No. ICTY , available in United Nations website at http://www.un.org.
LAW REVIEWS AND JOURNALS:
4. Vincent M. Creta, Comment: The Search For Justice in the Former Yugoslavia and Beyond: Analyzing the Rights of the Accused Under the Statute and the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, 20 HOUS. J. INT'L. L. 381 (1998).
5. Jose E. Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 YALE J. INT'L. L. 365 (1999).
6. Sean D. Murphy, Developments in International Criminal Law: Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 AM. J. INT'L. L. 57 (1999).
7. Madeleine Morris, Symposium: Justice in Cataclysm Crim. Trials In Wake of Mass Violence: Article: The Trials of Concurrent Jurisdiction: The Care of Rwanda, 7 DUKE J. COMP. & INT'L L. 349 (1997).
8. Scott T. Johnson, On the Road to Disaster: The Rights of the Accused and the International Criminal Tribunal for the Former Yugoslavia, 10 INT'L LEGAL PERSPECTIVE 111 (1998).
9. Joseph L. Falvey, Jr., United Nations Justice or Military Justice: Which is the Oxymoron? An Analysis of the Rules of Evidence and Procedure of the International Tribunal for the Former Yugoslavia, 19 FORDHAM INT'L L. J. 475 (1995).
BOOKS
9. HEDIEH NASHERI, BETRAYAL OF DUE PROCESS (1998).
10. G. NICHOLAS HERMAN, PLEA BARGAINING 1 (1998).
11. 1 VIRGINIA MORRIS & MICHAEL SCHARF, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (1998).
This research memorandum seeks to examine the following issue:
Whether the Office of the Prosecutor for the Rwanda International Tribunal may plea bargain with persons who are willing to plead guilty and if so what are the requirements? (1)
Although immunity is specifically prohibited, (2)
neither the Statute nor the Rules of Evidence and Procedure for
the International Criminal Tribunal for Rwanda deny the OTP the authority to engage in plea bargaining. (3)
Thus, the OTP may engage in plea bargaining because plea bargaining is an implied power that is "necessary for
completing the investigation and the preparation and conduct of the prosecution . . . ." (4)
However, the OTP must
restrict its plea negotiations strictly to those suspects and accuseds whom it considers, in its judgement, to be
lower level offenders. (5)
In order for the OTP to effectively engage in productive plea bargaining, it will have to do so by strategically
using the powers to amend an indictment under Rule 50 (6)
and withdrawal of indictments under Rule 51. (7)
The
OTP must maneuver in such a manner because the International Tribunal has stated that plea agreements
between the OTP and accused have "no binding effect" on the Trial Chamber, but will merely be "taken into
careful consideration in determining the sentence to be imposed upon the accused." (8)
This position on the
matter poses a serious obstacle to the OTP seeking to obtain information and guilty plea's from lower level
suspects (9)
and/or accuseds. (10)
This is because the suspects and accuseds will have no advance certainty of
what the effect their cooperation will be. (11)
Hence the OTP will need to strategically use its power to amend and
withdraw indictments in order to engage in fruitful plea negotiations. LEGAL BASIS FOR PLEA BARGAINING 1. Fundamentals of Plea Bargaining Plea bargaining is a practice that dates back to the 1700's when the old English common law courts would
grant pardons to accomplices in felony cases upon the defendant's conviction, or execution upon the
defendant's acquittal. (12)
Today, however, and for the purposes of this memorandum, plea bargaining is a
mechanism whereby "the prosecutor and defense counsel [accused and/or suspect] enter into an agreement
resolving one or more criminal charges against the defendant without a trial." (13)
The benefits of plea bargaining are considerable and it is considered an indispensable tool
without which certain "judicial system[s] would collapse." (14)
This is because the number of
criminal offenders in many judicial systems often outnumber the courts, judges, prosecutors,
and prisons cells. (15)
Plea bargaining greatly reduces the strain on the criminal justice system
and therefore is considered essential to maintain its efficient functioning. Particularly from the
prosecutor's perspective, some of the benefits of plea bargaining are the saving of time and
resources. (16)
However, perhaps one of the most important benefits of plea bargaining to a
prosecutor is that it permits him/her to gain the cooperation of the accused "in the capture of,
and compilation of evidence against, larger criminal figures." (17)
Plea bargaining can occur at several stages of the criminal process. (18)
It can occur before or
after the defendant is formally charged. (19)
Plea bargaining pertinently results in one or more of
the following: (1) an agreement by the prosecutor to not charge the defendant; (2) a plea of
guilty by the defendant to a reduced charge or a lesser included charge; and/or (3) a plea of
guilty by the defendant to a particular charge in exchange for a dismissal of other charges. (20)
Plea agreements can and often are conditioned "upon the defendant's agreement to certain
conditions such as cooperating in an investigation, giving testimony for the prosecution against
another defendant [and] refraining from further violation of the law . . . ." (21)
2. The Prosecutor Has the Authority to Engage in Plea Bargaining.LEGAL DISCUSSION
B.WHEN AND HOW THE OFFICE OF THE PROSECUTOR MAY PLEA BARGAIN WITH A SUSPECT AND AN ACCUSED.
The International Tribunal has stated that plea agreements between the OTP and accused have "no binding effect" on the Trial Chamber, but will merely be "taken into careful consideration in determining the sentence to be imposed upon the accused." (49) This decision by the International Tribunal to reject the binding effect of a plea agreement poses a serious obstacle to the OTP seeking to obtain information and guilty plea's from lower level suspects (50) and/or accuseds. (51) This is because such persons have no advance certainty what the effect their cooperation will be. (52) Thus, in post indictment situations the OTP, in order to engage in effective plea bargaining, must do so by strategically using the powers to amend an indictment under Rule 50 (53) and to withdraw indictments under Rule 51. (54) The OTP may engage in plea bargaining with a suspect or an accused by agreeing to add or drop various charges or indictments in return for a guilty plea on other charges and indictment and/or in return for information. However, the OTP must be aware of the substantial difference between the level of freedom the OTP has to plea bargain with suspects prior to indictment (hereinafter "pre-indictment") and the level of freedom it has to plea bargain with accused persons subsequent to indictment (hereinafter "post-indictment"). (55) The OTP has much more freedom to plea bargain with pre-indictment suspects. (56) In contrast, the level of freedom to plea bargain is much more circumscribed with post-indictment accuseds. (57) Finally, an alternative available to the OTP is to have lower level offenders be prosecuted by the Rwandan local courts, and to use the information generated through their plea bargaining mechanism to pursue the higher ups. (58)1.Pre-Indictment Plea Bargaining
If the plea agreement involves the promise not to bring certain charges or an indictment against the suspect prior to indictment in return for information about other suspects or a guilty plea on other charges, (59) the OTP may do so without having to seek prior approval of the Trial Chamber Judge. (60) This is considered to be within the discretion of the OTP prior to a judicial determination of the matter. (61) Hence, the OTP enjoys considerable freedom in pre-indictment plea bargaining because there is no role for Trial Chamber review at that stage. Under this analysis, pre-indictment plea bargaining would appear to be a continuation or extension of the OTP's investigative powers during which period the OTP is primarily engaged in gathering evidence to build its prima facie case necessary for an indictment. (62) In essence, the OTP would contact a suspect informing him of the strength of the evidence against him and give the suspect an opportunity to cooperate by providing the OTP with information against other higher level offenders. In return the OTP would offer to not bring certain indictments and/or charges.2.Post-indictment Plea Bargaining
In contrast, though the decision to withdraw an indictment is considered to be within the discretion of the OTP, OTP may not as freely engage in post-indictment plea bargaining. This is because the OTP must first obtain approval from the judge who originally confirmed the indictment. (63) Hence, a decision to withdraw an indictment will be subject to "judicial review to ensure that there are reasons for doing so." (64) The above arguments, however, should provide a sufficient enough justification for withdrawal of charges against a lower level offender who pleads guilty to other charges and or provides information against other higher level perpetrators. In practice, it appears that the International Tribunal has been fairly lenient in granting permission to amend and withdraw charges from an indictment. (65) In May 1998, the OTP for the ICTY withdrew charges against fourteen persons stating that it was necessary to focus "the resources of the of the Tribunal on persons holding higher levels of responsibility . . . ." (66) The Trial Chambers permitted this despite the fact that the decision to withdraw the charges was not based on any lack of evidence. (67)A.PLEA BARGAINING: PROSECUTORIAL CONSIDERATIONS
Generally speaking, a prosecutor's typical objective will be to "obtain a plea that is as close to the result that would be obtained if the defendant were convicted as charged." (68) Accordingly, the following discussion will concentrate on the factors a prosecutor will need to qualitatively and quantitatively consider in achieving this objective.1.Fundamental Considerations
Generally, one of the most important and initial factors a prosecutor should consider prior to entering into plea negotiations is the strength of their case. (69) The prosecutor must consider whether he/she possesses proof sufficient to satisfy the threshold of proof necessary for a conviction. (70) This is an important consideration because if the OTP lacks sufficient evidence to convict a suspect or accused, the suspect or accused will not be inclined to engage in plea negotiations. In sum, "the relative strength of the prosecutor's case, the likelihood of an appeallable issue, and the relative trial skills of the defense counsel and the prosecutor" will be imperative factors that should be evaluated prior to the decision of whether to plea bargain with a suspect or accused. (71) An obvious consideration the OTP will need to entertain in deciding whether to plea bargain is the severity of the crime and the nature and extent of the suspect or accused's participation in the commission of the offense. (72) There is a great deal of consensus among international lawyers and policy makers that those persons who are the orchestrators, the military leaders and politicians should be prosecuted to the fullest. (73) Hence, the OTP should not engage in plea bargaining with the higher-ups no matter how useful their testimony may otherwise be. Rather plea bargaining should be an option reserved exclusively for lower-level suspects and accused persons. The "background and status" of the suspect and accused should also be considered in determining whether to engage in plea bargaining. (74) Specifically, the "age, . . . , family circumstances, health, . . . , prior criminal record . . . [ ], all should be considered. (75) "Budgetary and resource constraints" are always a necessary consideration. (76) It is quite clear that the OTP for the Rwandan Tribunal is constrained by the limited budget, time and personnel. (77) Plea bargaining is one of the most effective mechanisms by which to greatly reduce the depleting to these already scarce resources. Finally, one of the most important considerations the OTP will need to consider is the ability of the defendant to assist in the indictment of the higher-level offenders. (78) For example, a suspect or offender who is at the bottom of the hierarchy of offenders and who had little or no contact with any of the higher-ups, will have very little to add to what the prosecutor may already know. It would therefore be of no advantage to engage in plea bargaining with such a suspect or accused. In this connection, the OTP will also need to assess the trustworthiness and willingness of the suspect or accused to cooperate. (79)B.PLEA BARGAINING SYSTEMS IN CANADA AND THE UNTIED STATES
The plea bargaining systems of Canada and the United States are being used illustratively in this memo because the roles of the OTP and the Trial Chamber judges are greatly similar to the roles of the prosecutor and judges in these two countries. (80)Similarity Between he Roles of the Prosecutor and Judge in the ICTR and the United States Criminal Justice Systems.
Similar to the OTP, prosecutors in the United States are given tremendous discretion in the exercise of their investigative and prosecutorial powers. (81) A prosecutor in the United States "has broad authority to decide whether to investigate, grant immunity, or permit a plea bargain and to determine whether to bring charges, what charges to bring, when to bring charges, and where to bring charges." (82) The prosecutor's broad discretion is recognized by courts of the United States "in part out of regard for the separation of powers doctrine and in part because 'the decision to prosecute is particularly ill-suited to judicial review.'" (83) This separation of powers doctrine is akin to the OTP which "constitutes the separate and independent organ of the Rwandan Tribunal . . . ." (84) Further similarity may be observed by comparing the role of the judges in the plea bargaining process. In the ICTR system, the judge does not participate whatsoever in the pre-indictment plea negotiation/plea bargaining process. (85) Similarly, because plea bargaining often takes place at such an early stage of American proceedings, the judges are often unable to review the prosecutor's judgment, (86) while judges in the federal systems are completely prohibited from participating in the plea negotiation. (87) A final similarity between the two systems may be observed in that plea agreements in both the ICTY and United States are ultimately subject to judicial scrutiny. (88)Similarity Between the Role of the Judge and Prosecutor in the ICTR and the Canadian Criminal Justice Systems.
The Canadian plea bargaining system is especially relevant because it is a mechanism that is "not well entrenched" into the criminal justice system. (89) A Canadian commentator states that:[b]argaining has never been fully recognized as a legitimate practice in Canada, at least not to the same extent as in some American jurisdictions. There is by no means a uniform set of rules governing this process, and the way in which functions depends primarily on the kinds of relationships that have grown up between magistrates, Crown attorneys and defense counsel in particular parts of the province. (90)This treatment of plea bargaining is relevant because plea bargaining in the ICTR is similarly not a commonly accepted practice. (91) Plea bargaining, or "plea negotiation" as it is referred to in Canada, (92) has gained what is described as a "silent acceptance." (93) This description is used because although Canadian courts "have reluctantly dealt with the legal entanglements that arise in plea bargaining," they have nonetheless let it continue. (94) In contrast to the United States and ICTR, the prosecutor (95) is not the sole individual responsible for investigation of an offense in the Canadian criminal justice system. (96) Notwithstanding this, the prosecutor does engage in plea bargaining once the case has been referred to its office. (97) It appears that this is ordinarily done during a meeting that is held once the accused decides to plead guilty (98) in the Crown Attorney's Office. (99) It is at this meeting that the accused, accompanied by defense counsel, discusses with the Crown Attorney what would be the appropriate sentence in return for a guilty plea and whether the accused will plead guilty to reduced charges or a lesser included offense. (100) However, as is the case in the United States and the ICTR, the plea agreement is again ultimately subject to judicial scrutiny. Similar to the United States and the ICTR, the judge does not participate in the plea negotiation (101) but retains the ultimately authority to accept or reject the plea agreement. (102) In the Canadian criminal justice system the judge is not required to inquire into the propriety of the plea agreement entered into, and ordinarily will accept it provided that he is "'sufficiently' informed of the facts upon which the defendant pleads guilty, especially when the charge carries a heavy maximum sentence or the defendant might have good grounds for a defense." (103) Furthermore, in the Canadian criminal justice system, the judge makes the ultimate determination regarding the sentence to be imposed. (104)
3.Fundamental Observations on Plea Bargaining in the United States.
Approximately 90% of all criminal cases are resolved through plea bargaining in the Untied States. (105) The process of plea bargaining in the United States is guided by three sources of law: (1) the United States Constitution; (2) statutes; and (3) judicial pronouncements found in case law. (106) While plea bargaining on the federal and state level is commonly governed by statute, (107) the focus of the following discussion will be some of the more important and general principles as found in case law before the enactment of Rule 11(e) of the Federal Rules of Criminal Procedure (108) and case law discussing the performance and breach of plea agreements.
Prior to the enactment of Rule 11(e), the focus on plea bargaining revolved around the voluntaries of the guilty plea. (109) The general criteria required for a guilty plea obtained through plea bargaining was that the guilty plea must not have been "induced by promises or threats which deprived [the plea] of a voluntary act." (110) A plea will not be considered voluntary if it was induced by threats or coercion, (111) was based on unfulfilled (112) or improper promises, (113) or if the defendant was mentally incompetent. (114) In addition, the entry of the plea must be knowledgeable. (115) A court will invalidate the plea itself if it determines that the defendant does not have a full understanding of the plea and of its consequence. (116) American courts will also invalidate a plea if it finds that the prosecutor obtained the plea by threatening the defendant with prosecution if the defendant refuses to provide information or testify without first promising to grant some sort immunity to the defendant. (117)Issues involving the performance and breach of plea agreements have also been addressed by courts of the United States. These issues have typically been analyzed using traditional contract principles. (118) In general, the United States Supreme Court has stated that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." (119) Therefore, it could be inferred that if the prosecutor withdraws his plea before the defendant enters a guilty plea or before the defendant has significantly relied upon the prosecutor's promise, the defendant will ordinarily have no recourse, unless perhaps the defendant has waived a constitutional right, (120) or has provided substantial cooperation by providing information. (121)
A promise made by a prosecutor must also be kept by a subsequent prosecutor who is assigned the case. (122)
However, a prosecutor is not bound by a promise which is not accepted by and which does not cause the defendant to rely to his detriment on it. (123)
The typical remedy for a defendant in the event the prosecutor has breached the agreement, is specific performance. (124) Thus, if the prosecutor breaches his promise to withdraw certain charges, the defendant may have the agreement judicially enforced and have the charges withdrawn.The prosecutor is permitted to breach his promise in certain limited instances. Most common is where the prosecutor learns that the defendant has defrauded the prosecutor, or because the defendant has committed another crime after the prosecutor has made the promise. (125) In contrast, the prosecutor may not breach his promise: (1) because he has had a change of heart; (2) because another prosecutor in the office disagrees with the promise; (3) in the absence of fraud, because of a unilateral mistake or a mutual mistake; or (4) in light of the discovery of new evidence/ facts concerning the seriousness of the defendant's offense . (126)
4.Fundamental Observations on Plea Bargaining in Canada
In contrast to the United States, "there are very few cases in which Canadian Courts have expressed a view as to the merits or propriety of prosecutorial plea bargaining or have hinted at plea bargaining in any way." (127) In fact the most noteworthy and significant cases concerning plea bargaining did not take place until after 1970. (128) In addition, there are even fewer guidelines governing plea bargaining. (129) The approach applied by the Canadian criminal justice system is "cautious." (130) The Canadian courts have not provided a "clear stamp of approval" to plea bargaining. (131) However, courts that have addressed the issue, have been mainly concerned with "avoiding unfairness 'not only to the Magistrate but to the accused.'" (132) Canadian courts have also attempted to achieve this end even when dealing with issues of breach and performance. (133)
As a preliminary matter, judges in the Canadian criminal justice system, who are responsible for determining the appropriate sentence to be imposed on a defendant, (134) can under no circumstance intimate to a defendant the sentence he will impose if the defendant agrees with the prosecutor to plead guilty nor if the defendant decides to plead not guilty and is convicted. (135) The reason courts prohibit participation by the judge in the plea bargaining process is to provide the defendant "complete freedom of choice to plead guilty or not guilty." (136) Thus, it is clear that Canadian courts addressing plea bargaining are primarily concerned with avoiding guilty pleas by defendants who are innocent yet consider pleading guilty because of their uncertainty regarding the ultimate disposition.
Similar to the United States, issues of breach and performance of plea agreements have also been resolved using traditional contract principles. However, the purpose of these decisions has not been to rule on the propriety of plea bargaining, but rather have focused upon the fairness to the defendant who accepts the plea agreement and relies on it to his detriment. Thus, Canadian courts have often simply ignored the entire issue of the propriety of the plea agreements, but acknowledged its presence and proceeded to hold the prosecutor to his promise on the contract theory of detrimental reliance. (137) An identical issue was presented to the Quebec Court of Appeals in Attorney General of Canada v. Roy (1972) (138) and again the contract theory of detrimental reliance was applied. The court stated:
[t]he Crown, like any other litigant, ought not to be heard to repudiate before and appellate court the position taken by its counsel in the trial court, except for the gravest possible reasons. Such reasons might be where the sentence was an illegal one, or where the Crown can demonstrate its counsel was somehow misled, or finally, where it can be shown that the public interest in the orderly administration of justice is outweighed by the gravity of the crime and the gross insufficiency of the sentence. (139)
One final and extremely important case, though highly exceptional, (140) is Perkins & Pigeau v. The Queen (1976). (141) In this case, the Quebec Court of Appeals addressed a plea agreement that involved a promise by the prosecutor to the defendant for an offense that was less serious and different from the offense for which he had been originally charged. The court rejected such an agreement, stating:
"[e]ither the accused was guilty and must face the mandatory sentence impose by law or he was innocent and must be acquitted. A plea to a lesser offense may be accepted if the Crown doubts its ability to prove a charge, but that was not the case here since the Crown attorney admitted having enough evidence to establish importing." (142)This case, however, is the exception rather than the rule. (143)