I was just introduced to a new website, The Truth About False Confessions, that contains warnings about the powers of prosecutors.
(Some years ago I read a book, on which I cannot at the moment put my hands, in which the author claimed that guilty pleas were not alowed under old English common law, in order to avoid giving to prosecutors the enormous powers they have under our current system of plea bargaining, in which confessions to lesser crimes and guilty pleas can be exacted under threat of prosecution for much more serious crimes. If anyone knows about such matters, please drop me a note; in a quick on-line search, I have not been able to find evidence to support the claim and I could not find it in a quick look through some of my legal history books.)
This may be more than you wanted to know but…I asked my brilliant husband (law prof) if he could help here is his quick answer(!):
“I have looked through the three fairly comprehensive English legal history books I have as ready reference, viz., Jolliffe’s The Constitutional History of Medieval England to 1485, Maitland’s The Constitutional History of England, and Baker’s An introduction to Legal History, and I can find no reference to any preclusion upon a plea of guilty at Common Law. Indeed, there might have been some rule in ancient (pre-Norman Conquest) British law about this, but, at that time, the criminal law system as we now know it had not yet been invented. By the time of the greatest law-giving post-Conquest king, Henry II, criminal law had assumed a more-or-less recognizable identity, as part of the Pleas of the Crown. It is in the very nature of the common law pleading system that all initial pleas (in this case a plea of the Crown that the offender had breached the King’s Peace) must be answered. Thus, logically, a defendant could either deny or admit the criminal plea against him. There is much discussion in the books about the nature of the exculpatory pleas allowed the defendant in criminal cases (generally, only the general issue plea), but no discussion of the guilty plea that I could find in the literature, leading me to conclude that an accused anciently must have had the right to plead guilty. My guess is that this is not discussed in legal history books for the same reason as there is no discussion of periods when nothing much happened in general history books — they simply did not interest the historian. Pleas of not guilty, though, generated legal history in consequence of what happened post-plea. It is also hard for me to think of this issue in terms of prosecutorial power, because a prosecutorial function as separate from the judicial function of the Crown was not a part of medieval thinking. Anciently, what we now regard as criminal cases were prosecuted by the individual wronged, by way of the appeal. Thus, until very recently in English legal history, there was no standing body of prosecutors. Instead, the Crown would engage a barrister to prosecute a criminal case, and, in fact, a private individual could engage a barrister to do the same, as I believe was the case in the famous sodomy prosecution of Oscar Wilde by the Marquis of Queensbury. The whole idea of a separate body of prosecutors (now the CPS) came very, very late to English law.
That’s the best I can do on short notice.”
He added a PS:
“It strikes me also that what might be involved here is the “right” of a criminal defendanht to plead guilty, which, in American jurisprudence, is not really a right at all, owing to the duty of the judge not to accept an “improvident” plea of guilty. This duty is, of course, cloaked with discretion, but its existence forms the very basis for the extensive colloquy between the judge and the defendant mandated by Rule 11 of the Federal Rules of Criminal Procedure prior to the acceptance of a guilty plea. If the judge cannot be satisfied that there is a factual basis for the plea, it must be rejected. Similar — but even broader — discretion attends the acceptance of a plea of nolo contendere. I do not know, but I suspect, that the same rule of law prevails in modern English jurisprudence.
I have no idea how far back into Common Law legal history this discretion extends, but I suspect it goes very far back, at least to the time when judges saw themselves as dispensers of justice in addition to keepers of the Kings Peace, and I do not know enough to pinpoint such a time.”
You might take a look at http://www.freecasey.com and related websites to which it is linked. It presents the situation of a twenty-something named Tim Richards who, as an 18 year old, dated a 15 year old. They made some personal porn and later put it on the internet (after both were 18). Another teen porn star, Justin Berry (subject of a 48 Hours or similar expose), had been seduced into underage porn as a teen, however, after reaching 18 and undergoing an on-again off-again Christian conversion and porn trip to Mexico City, decided, after being given $2,000 by a ‘sympathetic’ New York Times reporter working the story (Kurt Eichenwald) to help him ‘get his life together’, promptly used the money to reopen his porn site, seek immunity from the feds for cooperating in an internet porn sting, then get Tim Richards involved in the web hosting (administrative) side of his business while presenting the content to Richards as ‘legal’ even though it included what technically was child porn produced by Justin Berry. Several defendants pled to lesser offenses or obtained immunity in return for testimony. Tim Richards did not, and the feds brought any theoretical charge in the books, Richards fought the charges, won some lost some, and ended up with a huge jail sentence… for pretty much nothing, given that the victims had validated their own ‘child porn’ by selling it themselves after turning 18. It’s a complicated case, but the essence is that those who don’t cooperate are punished for troubling the court and the government with a trial.
Valerie,
Please tell your husband that’s one of the coolest things I’ve read in a long time. Well done!
Best,
Greg
Dear Valerie,
Please thank your husband for me, as well! I looked at some of the same books (perhaps less attentively) and could also not find such a claim. I recall now that the claim was in “The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice,” by Paul Craig Robert and Lawrence Stratton. (http://www.amazon.com/Tyranny-Good-Intentions-Prosecutors-Constitution/dp/076152553X/ref=pd_bbs_sr_1/102-8567174-8075366?ie=UTF8&s=books&qid=1183695088&sr=8-1 )
I don’t have a copy handy, but I’m sure I read it in that book. I will try to track it down and verify the claim.
heating consulting
this sort of thing keeps me going, thanks heaps…
You are thinking about France under its civil law system. Until the recent islamic explosion in crime Plea Bargaining was not allowed. Instead, even if you pleaded guilty, you would still be brought to trial and could concievably be acquitted. Of course, I think this only applied to serious crimes. Recently with alll the muslim crime that has been caused in Fance they have begun to allow Plea Bargaining in order to clear the backlog of cases in the courts.