|
It is a judge's
duty to insure the fair and proper administration of justice.
One important function is to determine if a defendant who is pleading
guilty is doing so intelligently, voluntarily, and without
threat or coercion. Accordingly,
when a person enters a plea of guilty, a judge will question the
person in open court. This is to insure that the defendant knows
what he or she is doing. The following are sample questions that
may be asked by a judge to a defendant.
Questions to a
defendant:
Before accepting your plea of guilty, I will ask you
certain questions. If you do not understand any question, please
ask me to explain it to you.
1.
(a) What is your full name?
(b) What is your date of birth?
(c) What was the last grade in school that you completed?
(d) What other education have you received?
2.
Are you the person charged in the (indictment) (information)
(warrant) with commission of the offense(s) of
________.
3.
Do you fully understand the charge(s) against you? Have you
discussed the charge(s) and (its) (their) elements with your
lawyer, and do you understand what the government must prove
before you may be found guilty of (this) (these) charge(s)?
4.
Have you had enough time to discuss with your lawyer any
possible defenses that you may have to (this) (these) charge(s)?
5.
Have you discussed with your lawyer whether you should plead
not guilty or guilty?
6.
After the discussion, did you decide for yourself that you
should plead guilty?
7.
Are you entering the plea of guilty freely and voluntarily?
8.
Are you entering the plea of guilty because you are, in fact,
guilty of the crime(s) charged?
[If
the defendant answers "No":]
(a)
Have the government summarize the evidence on the record.
(b)
Ask the defendant, "Are you pleading guilty because this is
the government's evidence, and you do not wish to take the
risk that you will be found guilty beyond a reasonable
doubt?"
(c)
If the defendant answers "Yes," the court may, but
need not, accept the plea; if the court accepts the plea, the
court should note that there is substantial evidence against the
defendant. Otherwise the court should not accept the plea. (See
North Carolina v. Alford, 400 U.S. 25 (1970)).
9.
Do you understand that, by pleading guilty, you are NOT
entitled to a trial by jury?
10.
Do you understand that, by pleading guilty, you
waive your right not to incriminate yourself?
11.
Do you understand that, by pleading guilty, you waive your right
to confront and cross-examine your accusers?
12.
Do you understand that, by pleading guilty, you waive your right
to defend yourself?
13.
If the accused is in prison, on parole, or probation.
Do
you understand that conviction may (affect your right to parole)
(cause revocation of your parole/probation)?
14.
If the crime involves possession/distribution of drugs.
Have
you discussed with your lawyer whether the defense of
accommodation may apply in this case?
15.
if the accused may be sentenced under the habitual offender
statue,
Have
you discussed with your lawyer the possibility that there may be
mitigating circumstances that permit this court not to impose
the mandatory sentence?
16.
Has anyone connected with your arrest and prosecution, such as
the police or the government's attorney, or any other person,
in any manner threatened you or forced you to enter this plea of
guilty? Have they made any promises concerning your plea of
guilty?
17.
Do you understand that the maximum punishment for this crime is
_____ years imprisonment and $_____ fine plus all court costs?
(If a guilty plea involves more than one offense, substitute the
following: Do you understand that if you are sentenced
consecutively, the maximum punishment for these crimes is _____
years imprisonment and $_____ fine plus all court costs?) [If
the crime has a mandatory punishment, also question accused on
his understanding of the mandatory punishment]
18.
Are you entirely satisfied with the service (of the lawyer
who was appointed to represent you)(of the lawyer representing
you) in this matter?
19.
Do you understand that, by pleading guilty, you may waive any
right to appeal the decision of this Court?
The judge may, but need not, inform the defendant that a guilty
plea does not waive the right to appeal lack of jurisdiction or
imposition of an impermissible sentence.
20.
If a written guilty plea is used ask the following questions:
(a)
Have you read the guilty plea form?
(b)
Do you understand the guilty plea form?
(c)
Are the statements in the guilty plea form true?
21.
Have you entered a plea agreement with the government's
Attorney in this case?
If
the answer is in the affirmative, read or otherwise put the plea
agreement into the record, then ask the following:
Does it contain the full and complete agreement entered into among
you, your lawyer, and the government's attorney"?
Complete either (a) or (b), whichever is appropriate:
(a) The following may be asked if the
government's
attorney has agreed that a particular sentence is appropriate.
Do
you understand that:
(1)
The court may accept the agreement, reject the agreement, or may
defer any decision to either accept or reject until there has
been an opportunity to consider a presentence report?
(2) If the court accepts the agreement, the court will
include in its judgment and sentence the sentence provided for
in the agreement?
(3) If the court rejects the agreement, you will not be
bound by the agreement and you will be given an opportunity to
withdraw your plea of guilty, and if you do, your trial may be
conducted by another judge of this court?
4) If you still plead guilty after the court rejects the
plea agreement, the sentence in the case may be made more
severe
than the disposition contained in the plea agreement?
(b)
The Following may be asked if the government's attorney merely
recommends, or agrees not to oppose a request for, a specific
sentence.
Do
you understand that this agreement only provides for the
government's attorney (to make a recommendation) (to agree not
to oppose a request for) a particular sentence, that this
recommendation or request is not binding on the court, and if
the court does not accept the recommendation or does not go
along with the request, you have no
right to withdraw your plea of guilty unless the government fails to perform its part of the agreement?
Do
you also understand that the sentence the court imposes may be
made more severe than the sentence (recommended) (requested)?
22.
The following may be asked if the defendant was a juvenile at
the time of the offense:
Do
you understand that if you were tried for this offense and found
guilty, the court and not the jury would set the sentence?
23.
Do you understand all of these questions?
24.
Do you have any questions you wish to ask the court?
|
