Pleas in Federal Criminal Procedure

Notre Dame Law Review, Dec 1959

By Lester B. Orfield, Published on 12/01/59

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Pleas in Federal Criminal Procedure

DE PAUL L. REv. Pleas in Federal Criminal Procedure Lester B. Orfield - A Quarterly Law Review tWE VOLUME XXXV DECEMBER, 1959 PLEAS IN FEDERAL CRIMINAL PROCEDURE Lester B. Orfield* Rule 11 of the Federal Rules of Criminal Procedure, entitled "Pleas," provides as follows: A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with an understanding of the nature of the charge. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. I. HISTORY OF D.AFTYING OF RULE 11. The first draft of the Federal Rules of Criminal Procedure, dated September 8, 1941, provided in Rule 7(a): "The plea shall be not guilty, nolo contendere or guilty." Rule 8(b) (2) provided that if the defendant does not plead noto contendere or guilty, he shall plead not guilty or move to dismiss the accusation. If the defendant wishes to deny directly and without affirmative defense that he did the act charged, he, or his counsel in his presence, shall enter orally in open court his plea of not guilty. If the defendant wishes in addition to assert an affirmative defense, he or his counsel shall file a motion to dismiss the accusation. The Committee for the Southern District of Florida proposed that all other pleas be abolished; that a defendant be permitted to plead guilty by so announcing in court, and that the court be empowered forthwith to accept such and to enter judgment. Judge Taylor of the Sixth Circuit complained that many defendants plead not guilty at arraignment and then change their plea on the date of the trial. He discouraged this by announcing at the time of arraignment that such a change might bring additional punishment. But he admitted that often the lawyer rather than the defendant was at fault. The Committee for the Western District of Oklahoma suggested that if a defendant refuses to plead the * Professor of Law, Indiana University; Member, United States Supreme Court Advisory Committee on Rules of Criminal Procedure. court must then enter a plea of not guilty for him; and that special pleas should be filed within ten days after a plea of not guilty but without withdrawal of the not guilty plea. Mr. A. W. Trice of the Committee for the Eastern District of Oklahoma suggested that a plea of not guilty be made in writing prior to or at the time of arraignment, or orally in open court at the time of arraignment, or within 24 hours thereafter. The Committee for the Eastern District of New York suggested a rule to permit defendants charged with felonies or misdemeanors to plead guilty to a petty offense if the United States Attorney and the court approve. The Committee for the Western District of Oklahoma would permit a plea of nolo contendere up to the time the jury is sworn; when it is entered the United States Attorney must present to the court a statement of facts which he is prepared to prove and the court will then determine the defendant's guilt or innocence. Frederick F. Faville of Iowa would abolish the plea. The Judicial Conference of the Second Circuit discussed the plea and concluded that it had more friends than had been supposed. Rule 30(a) of the second draft, dated January 12, 1942, provided: "The plea upon arraignment shall be not guilty, nolo contendere, or guilty." Furthermore no other pleas "shall be recognized." Rule 51 (c), entitled "Pleas," provided: (1) that defendant on arraignment may ask the court for more time to secure counsel or otherwise prepare his defense, or may plead; (2) that the court may refuse to accept a plea of guilty or of nolo contendere; (3) that if the defendant stands mute or pleads evasively, or if the defendant is a corporation and fails to appear, a plea of not guilty shall be entered; (4) that if the defendant pleads not guilty he shall at the same time file any motions asking the court for orders either disposing of the written accusation or bringing the case on to trial; and, (5) that the arraignment or plea shall be entered of record, but the failure of the record to show the entry shall not constitute a defect or error if the defendant is not shown by the record to have objected to proceeding to trial without arraignment or plea. Rule 51 (b) of the third draft, dated March 4, 1942, made a number of changes in the former Rule 51(c). Under subsection (1) no provision was made for the defendant's asking for more time at his arraignment to secure counsel or otherwise prepare his defense. Under subsection (4) if the defendant pleads not guilty he shall within a reasonable time fixed by the court file any motions for orders with respect to the written accusation. The former subsection (5) on entry of record of arraignment and plea was omitted. The fourth draft, dated May 18, 1942, (...truncated)


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Lester B. Orfield. Pleas in Federal Criminal Procedure, Notre Dame Law Review, 1959, pp. 1, Volume 35, Issue 1,