Name ID

Mesud Gemechu.....,................... 1203164

Ana's abdusamed....................,

Alslledin ahimed............

Mohammed abdella ............

Dessalegn Gizaw..........

Baharo

1
 Chapter one

Concept of plea bargain

1.Introduction

Before we start About general concept of plea bargain its better to know first the meaning of plea
bargain. Hence Plea bargaining can be defined as a form of negotiation between the state and the
defendant whereby the latter agrees to plead guilty in return to charge or sentence concessions (Black`s
Law, 2004). In the most traditional and general sense “Plea bargaining” may be defined as an agreement
in a criminal case between the prosecution and the defense by which the accused changes his plea from
not guilty to guilty in return for an offer by the prosecution or when the judge has informally let it be
known that he will minimize the sentence if the accused pleads guilty. So after we have seen some
meaning of plea bargain in this unit we will discuss the concept of plea bargain in Different Foreign
countries and in Our country and we will discuss type of plea bargain its Advantage and disadvantages
of plea bargain

1.1 General over view of concept of plea bargain

Definitions of plea bargaining vary considerably from one context to another. Some perceive plea
bargaining broadly as any favorable treatment to adefendant in return to not only pleading guilty but
also waiving some rights as the right to appeal and the right to a preliminary hearing and testifying

2
against other suspects.1 However, this seems to unduly expand plea bargaining and confuse it with the
broader spectrum of negotiated justice which involves many concessions. Simply put, all negotiated
justice is not plea bargaining, but plea bargaining is one form of negotiated justice. Plea bargaining has
been defined as ‘any agreement by the accused to plead guilty in return for a promise of benefit’. 2In a
similar fashion, plea bargaining is defined as ‘the defendant`s agreement to plead guilty to a criminal
charge with the reasonable expectation of receiving some consideration from the state’. 3In both
definitions the defendant by pleading guilty (and not standing as a witness for fellow offenders, as some
prefer to include) agrees to trade his/her right to full scale trial in exchange for ‘some considerations
from the state’. Some suggest that the phrase ‘with reasonable expectation of receiving benefit’includes
what is termed as implicit plea bargaining in a sense that the offer need not necessarily come expressly
from the prosecutor. Instead, reasonable expectation of the defendant to be treated leniently by
pleading guilty suffices to imply plea bargains. 4 In various literature, this is sometimes referred to as
implicit plea bargaining However, this conception unnecessarily expands the ambit of plea bargaining to
include any guilty plea disposal of cases. This means that one can find plea bargaining in any jurisdiction
which does not recognize or practice plea bargaining per se but simply allows guilty plea disposal of
criminal cases. Such expansive conception overstretches the notion of plea bargaining off the mark.
Another limitation of the above definitions is that they do not specify the considerations defendants get
in exchange to pleading guilty. The broad nature of the definitions may create an impression that any
form of concession even if unrelated to sentence or charge may be included. Nonetheless, it must be

understood that such considerations should manifest themselves only in lower sentences or charges or
some favorable facts.Thus, plea bargaining can be defined as a form of negotiation/settlement between
the state and the defendant whereby the latter agrees to plead guilty in return to charge or sentence
concessions. These concessions take the form of less severe charges or dropping of charges/counts
(commonly referred to as charge bargaining) or some leniency regarding the punishment (sentence
bargaining).

1
Supra note of Mizan law Review vol.10 no 2 William F. McDonald (1979), ‘From Plea negotiation to coercive
Justice: Notes on
the respecification of a concept’, Law & Society Review, Vol. 13, pp.389-90.
2
Supra note of Mizan law review.Joseph Di Luca (2005), ‘Expedient MC Justice or Principled Dispute Resolutions? A
review of plea bargaining in Canada`, Crim. L.Q., Vol.50, p.14 [citing Law Reform
Commission of Canada (1975), Criminal Procedure: Control of the process, workingpaper No 15, p. 45].
3
William F. McDonald (1979), ‘From Plea negotiation to coercive Justice: Notes on the
Respecification of a Concept’, Law & Society Review, Vol. 13, Special Issue on Plea
Bargaining, p.388 [citing Herbert S. Miller et al (1978), Plea bargaining in the United state
4
Ibid

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1.2 TYPE OF PLEA BARGAIN

Generally, the type of concessions a defendant gets in exchange for pleading guilty determines the type
of plea bargaining. Plea bargaining that involves reduction of either the number of charges (counts) or
the severity of charges (offences) is commonly referred to as charge bargaining; whereas, a type of
bargaining which involves a recommendation of more lenient sentence is referred to as sentence
bargaining. Charge bargaining represents a kind of negotiation where a defendant agrees to plead guilty
to a criminal charge in return for dismissal of one of the counts or the defendant pleading guilty for a
lesser charge than he/she could otherwise face at the trial. 5 The former is known as horizontal plea
bargaining and the latter vertical plea bargaining. 6Charge bargaining does not directly involve the

sentence the defendant receives although the driving force behind it obviously rests on the desire to get
the least possible sentence for a reduced charge. Inquisitorial/mixed structures are generally skeptical of
the virtues of charge bargaining. For instance, Germany and Italy, by expressly proscribing it,

exclusively rely on sentence bargaining; and so does Russia. In contrast, adversarial structures such as
USA consider charge bargaining as part of a prosecutor`s charging discretion and thus put very limited
restraint on it. In England too, charge bargaining, which often takes place well before the charge is
formally filed, is less objectionable than sentence bargaining which in some way involves the judge, and
is in effect, believed to interfere with his /her neutrality.Under sentence bargaining, the prosecutor
agrees to propose lenient sentence following the defendant`s guilty plea, and the concessions may
include shorter prison terms, probation or referring to rehabilitation centers. Some further expand the
scope of sentence bargaining to include a wide range of concessions.Sentence bargaining appears to
involve an abandonment of the judge`s sentencing responsibility.evertheless, at least in theory, this is
not the case as it is up to the judge to endorse or reject such recommendations. The another type of
plea bargain is Fact Bargaining ;In fact bargaining, a prosecutor agrees not to contest an accused‘s
version of the facts or agrees not to reveal aggravating factual circumstances to the court. There is an
agreement for a selective presentation of facts in return for a plea of guilty.

Specific Fact Bargaining ;

5
Black`s Law (8th ed. 2004), p. 3657
6
Mizan law Review vol 10 no 2 p405

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In this type of bargaining there is an acceptance of sanction without pleading guilty which is known as
the nolo contendere pleas. Another category of pleas in this category

is known as the Alford pleas where there is acceptance of sanction but the defendant asserts innocence

1.3 Advantages and Disadvantages of Plea Bargaining

When we look at the advantage of plea bargain we feel that it is going to benefit the accused

persons at large. If we analyse the reason as to why the criminals go for plea bargaining,

then it comes to the fact that because they are able to reduce their punishment, which if

they would not do quickly will make them stay in arrest for more time through litigation.

Moreover, it is presumed that when an accused pleads guilty, the punishment of the

accused gets reduced. Also the benefit which the guilty gets by plea bargaining is the

reduction of the costs and time consuming trial of his case. It is also presumed that the

accused gains responsibility in his favour to enter the correctional system in a frame of

mind that may afford hope for rehabilitation over a shorter period of time.

Plea bargaining may be effective mechanism for removing the back log in courts. But the

problem arises afterwards when it is seen that the innocents are unnecessarily punished in

this speedy disposal of cases. Although it may be a method of reducing cost and allows

the prosecutor to allocate resources more effectively but it may not reduce the amount of

risk to which the criminals are made to face.

The disadvantageous part of plea bargaining is that sometimes the prosecutor forces the

accused to admit his guilt with unconscionable pressures. Even the accused may go

escape with less punishment by pleading his guilt and thereby diverting a little favourabledecision in his
favour. But most of the times it happens that the accused do not have the

required amount of resources available at their disposal to minutely investigate each and

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every case. Critics suggest that plea bargaining deprecates human liberty and the

purposes of the criminal sanction by commodifying these things, that is, treating them as

instrumental economic goods. It is also apprehended that it would encourage corruption

and collusion and as a direct consequence, contribute to the lowering of the standard of

justice. It may happen that judiciary might either convict an innocent accused by

accepting the plea of guilty or let off a guilty accused with a light sentence, thus

subverting the process of law and frustrating the social objective. (142nd Report of Law

Commission of India, 1991)

Another disadvantage is that it can very well be mis-used by the police asking the

criminals to accept their crime and reduce the punishment rather than suffering the

painful merciless powerful hits of the police.

The effective implementation of the plea bargaining requires that the judges be given a

lot of discretion and integrity along with some safeguards. If law provides for entering a

voluntary plea of guilty and a concessional treatment is accorded in the light of statutory

authority of law in accordance with the prescribed guidelines by judicial authority, it

would not be possible to say that the conviction based on the plea of guilty is erroneous.

For better implementation of plea-bargaining in India, the deciding authority must be

independent from the trial court and instead of the Public Prosecutor retaining most of the

power, the deciding authority must be given a greater role in the process. If the deciding

authority is the sole arbiter, the risk of coercion into pleading guilty and of underhand

dealings can be eliminated substantially. Therefore not only will the victims needs be

addressed but also the susceptibility of the system of being misused by the Public

Prosecutor, the police and even the affluent will be considerably reduced. In this respect,

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the scheme proposed by the 142nd Report of the Law Commission of India is prudent, as

it does not seek to carelessly replicate the American model of plea-bargaining. ( (2006) 2

SCC (Cri) J-12 )

It cannot be denied that the scheme ignores the fact that many lack the resources for

proper legal representation and is more a formalization of the unwritten rule of showing

leniency to those who plead guilty rather than plea-bargaining. Plea bargaining is mainly

a contract between two parties so what can be expected from it is that it will enhance the

social welfare on the condition that it is voluntarily performed. But to what extent will it

succeed will depend upon the law and order of the prevailing circumstance with thedecision of the
judges from case to case.

2. Plea bargain in Foreign country ;

2.1 Plea bargain in USA and in other country 7

“When one’s own legal system flounders, one naturally looks towards practices in other countries,which
seem to provide the solution. In a criminal trial in the United States, the accused has three options as far
as pleas are concerned guilty, not guilty or a plea of ‘nolo contendere’. A plea-bargain is a contractual
agreement between the prosecution and the accused concerning the disposition of a criminal charge.
However, unlike most contractual agreements, it is not enforceable until a judge approves it. Plea-
bargaining thus refers to pre-trial negotiations between the defence and the prosecution, in which the
accused agrees to plead guilty in exchange for certain concessions guaranteed by the prosecutor. Plea-
bargaining has, over the years, emerged as a prominent feature of the American criminal justice system.
While courts were initially skeptical towards the practice4, the 1920s witnessed the rise of plea
bargaining making its correlation with the increasing complexity in the American criminal trial process
apparent. In the United States, the criminal trial is an elaborate exercise with extended voir dire and
peremptory challenges during jury selection, numerous evidentiary objections, complex jury
instructions, motions for exclusion, etc. and though it provides the accused with every means to dispute

7
LL.M.203 unit 4 plea bargain pdf RM (1)pdf

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the charges against him, it has become the most expensive and time-consuming in the world.
Mechanisms to evade this complex process gained popularity and the most prominent was of course,
plea bargaining.In the US, plea bargaining is a significant part of the criminal justice system; the vast

majority of criminal cases is settled by plea bargain rather than by a jury trial. But plea bargains are
subject to the approval of the court, and different states and jurisdictions have different rules. In 1967,
both the American Bar Association and the President's Commission on Law Enforcement and
Administration of Justice approved the concept of plea bargaining. In 1970, the constitutional validity of
plea-bargaining was upheld in Brady v. United States (297 US 742 ; 25 L.Ed. 2d 747) where it was stated
that it was not unconstitutional to extend a benefit to an accused that in turn extends a benefit to the

State. In Santobello v New York (404 US 257), the US Supreme Court has recognized plea bargaining as
both an essential and desirable element of the criminal justice system. Around 95% of all convictions in
the US are secured with guilty plea. The courts are of

1. the view that the justice system is benefited from plea bargaining as it reduces the court
2. congestion, alleviation of the risks and uncertainties of the trial. ( People v Glendenning,
3. 127 Misc.2d 880, 1985 )

Plea bargaining in Pakistan was introduced by the National Accountability Ordinance,

1999, an anti-corruption law. The accused applies for it accepting his guilt and offers to
return the proceeds of corruption as determined by the investigators / prosecutors.
After endorsement by the chairman of the National Accountability Bureau, the request is
presented before a court. In case the court accepts the request for plea bargain, the
accused stands convicted but is not sentenced if in trial, nor does he undergo a sentence
previously pronounced by a lower court if in appeal. However, the accused is disqualified
from taking part in elections, holding public office and obtaining a bank loan, besides

being dismissed from service if he is a government officer. In Italy, the procedure of ‘pentito’ (literally,
he who has repented) was introduced for counter-terrorism purposes, and generalized during the Maxi
trial against the mafia in 1986-1987. The procedure has been contested, as the pentiti received lighter
sentences as long as they supplied information to the magistrates. Many of them have been accused
ofdeliberately misleading the justice system. [ (2006) 2 SCC (Cri) J-12]

2.2 Plea Bargaining in India

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The Indian concept of Plea Bargaining is inspired from the Doctrine of Nolo Contendere. The doctrine
has been under consideration by India for introduction and employment in the Criminal Justice System.
Indian Criminal Justice System has been ineffective in providing speedy and economical justice. Because
Courts are flooded with astronomical arrears, the trial life span is inordinately long and the expenditure
is very high. Subsequently majority of cases are arising from criminal jurisdiction and the rate of
conviction is very low.The fact that courts resources would have to be significantly increased to provide
a trial for every charge has been cited as both justification and reason for the inevitability of plea-
bargaining. Proponents of plea-bargaining argued that it would remove the risks and uncertainties
involved in a trial, thus introducing flexibility into a rigid, often-erratic

system of justice. It would also enable the court to avoid dealing with cases that involve no real dispute
and try only those where there is a real basis for dispute. Victims would be spared the ordeal of giving
evidence in court, which could be a distressing experience depending on the nature of the case.Recently
the Government of India has accepted the Doctrine of Nolo Contendere or Plea Bargaining, on the
Recommendations of the Law Commission. Doctrine of Nolo Contendere has been considered in a
manner according to social and economical conditions prevailing in the country. Appropriate
amendment has been incorporated in the Criminal Procedure Code, 1973. The new concept of Plea
Bargaining will be fruitful in resolving pending criminal cases and under trial in jails for years. Plea
bargaining has been inserted through Chapter XXI A in the Criminal Procedure Code. It provides for pre -
trail negotiations between the defence and the prosecution during which an accused might plead guilty
in exchange for certain concessions by the prosecution .

3 .Overview of plea bargain under Ethiopia

Plea bargaining has been defined as ‘any agreement by the accused to plead guilty in return for a
promise of benefits. plea bargaining is defined as ‘the defendant`s agreement to plead guilty to a
criminal charge with the reasonable expectation of receiving some consideration from the state’.Plea-
bargaining is also defined as “the process by which the defendant in a criminal case relinquishes the
right to go to trial in exchange for a reduction in charge and/or sentence.

Plea bargaining has its roots in the adversarial system.this structure is configured and works in such a
way to lend itself for negotiation in the context of a criminal process that involves a dispute between

9
autonomous parties.This together with the fact that resolution of disputes naturally involves negotiation
makes adversarial structures suitable for plea bargaining to flourish.

This can be contrasted with the inquisitorial system`s official inquiry of the truth and their conviction
that truth cannot be negotiated.Moreover, the guilty plea procedure, the passivity of the judge and the
nearly unfettered charging power of the prosecutor, which are some of the features of adversarial
systems but non-existent in inquisitorial systems, afford a fertile ground to negotiate on guilty pleas and
thus for pleabargaining to function.

introduces alien concepts and processes among which the concept of plea bargaining is of utmost
importance. The policy states that every actor is interested to get a defendant admit his act. The policy
stipulates that plea bargaining would reduce the number of criminal caseloads which would pass
through the full process of the criminal proceeding and to lessen backlogs so that the criminaljustice
administration will be effective and efficient

Unlike the adversarial system, the inquisitorial systems make identification of truth the concern of
official investigation instead of a matter of parties’ negotiation. Much literature claims that “criminal
trials in civil law countries are often viewed as a truth-telling process and plea bargaining rarely
contributes to a deeper understanding of the “truth” of the events of the crime itself, therefore, it may
not fit well in a legal culture that looks to formal trial processes to determine the truth of the events
underlying a criminal case.”This is true in the Ethiopian criminal justice system as the search for truth is
given emphasis in the criminal proceedings. It is clear from the policy thatfact bargaining allows
defendants to plead guilty to only to some of the facts which substantially affects not only the ultimate
penalty but also the search for truth.Moreover, the FDRE Constitution is meant to further the due
process aspect of the criminal justice administration i.e., determination of the truth, as thefoundation of
justice, in the events of a crime

According to Article 19, an arrested person have the right to remain silent and shall not be compelled to
make confessions or admissions which could be used in evidence against that person so that any
evidence obtained under coercion shall not be admissible.Additionally, the constitution provides that a
court shall ensure that the responsible law enforcement authorities carry out the investigation, in
searching for the truth, respecting the arrested person's right to a speedy trial. This is a clear stand of
the law towards truth and the due process rights. Investigating police officers and prosecutors may

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always focus on inducing a defendant to plead guilty instead of diligently investigating crimes. The
nature of plea bargaining, therefore, would make the fundamental due process rights futile.

Furthermore, pursuant to Article 20, accused persons have the right to a public trial by an ordinary court
of law within a reasonable time after having been charged and they have the right to be informed with
sufficient particulars of the charge brought against them. Interestingly, they have the right to be
presumed innocent until proved guilty as well as not to be compelled to testify against themselves.

3.1 Policy justifications of plea bargaining. 8

The FDRE Criminal Justice Policy embodies reforms aimed at:

(1) introducing plea bargaining and compensation for miscarriage of justice

(2) strengthening alternative dispute resolution mechanisms (ADR), legal representation and the
capacity of investigative organs, among others. Of these, the introduction of plea bargaining represents
an unprecedented development in the Ethiopian criminal justice system. The Policy tries to justify the
reasons that motivate Ethiopia to introduce plea bargaining. The policy tries to justify plea bargaining
from diverse perspectives. The policy justifications that motivate Ethiopia to introduce plea bargaining
include: efficiency for the justice system, remorse and rehabilitation of offenders, and protecting victims
and defendants from the trauma of trials.

3.2 The Model targeted by Ethiopia

The reading of the provisions of the Draft Criminal Procedure Code and the Criminal Justice Policy
suggests that the targeted version of plea bargaining has the following general feature

First, it is broader in scope, covering any crime across the board and all the commonly known types of
plea bargaining –charge bargaining, sentence bargaining and fact bargaining. Unlike, most countries
(especially those from the inquisitorial structure) that transplant plea bargaining in its restricted model,
Ethiopia seems to prefer emulating plea bargaining nearly as applied in adversarial systems.

Second, the power to plea bargain vests in the public prosecutor, excluding the police and the courts.
The Draft Code expressly reserves this power to the prosecutor.

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Supra note of vol 10 no 2016

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Third, the Policy and the Draft Code provide legal conditions for plea bargaining. These include the
voluntariness requirement, the duty of disclosure, the requirement of sufficient evidence, and in
principle mandatory legal representation.

Fourth, as it stands now, the amount of concessions in plea bargains is left for the discretion of the
prosecutor. In contrast to most inquisitorial jurisdictions which put a fixed discount of one-third, the
Ethiopian variant does not fix the amount of concessions.

3.3 Fundamental Principles of Criminal Law and Procedure at Stake9

3.3.1 The presumption of innocence

The presupmtion of innocence forms one of the cardinal constitutional principles in many jurisdictions.
The FDRE Constitutionunconditionally guarantees the right of an accused person to be presumed
innocent until guilt is established by a court of law.the Criminal Justice Policy the Draft Criminal
Procedure Code and some statutory laws such as the Anti-corruption law limit the scope of the right by
shifting the burden of proof to the accused. The Policy envisions further limtations of the right by law.

Plea bargaining in general and the proposed ‘Ethiopian version’ in particular operates in disregard of the
principle of presumption of innocence in two respects,First, the plea bargaining offer from the
prosecution presupposes an implicit presumption of guilt; i.e., in making offers to negotiate, the
prosecutor assumes that the defendant is guilty.

Second, plea bargaining lowers the standard of proof. It relies not on evidence as such rather on the
admission of guilt which is likely to be tailored based on the strength of evidence –the probability of
prevailing at trial and the weight of concessions.

3.3.2 The principle of equality

Both the FDRE Constitution and the Criminal Code embody the principle of equality and proscribe
discrimination among defendants ‘on grounds of race, nation, nationality, or other social origin, colour,
sex, language, religion,political or other opinion, property, birth or other status’. However, by treating
similarly situated defendants differently without any principled justification plea bargaining collides
starkly with the equality principle.

3.3.3The search for the truth/accuracy

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Mizan law Review vol 19 no 2 2016 p 413-420

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The search for the truth is one of the fundamental principles of Ethiopian criminal procedure law. It is
expressly mentioned in the reform that the criminal process needs to be guided by this principle. The
Draft Criminal Procedure Code specifically entrusts the judiciary with the duty to uncover the truth so
that the criminal accounts for his wrong and the innocent faces no conviction.,

SUMMARY:Plea bargaining can be defined as a form of negotiation between the state and the
defendant whereby the latter agrees to plead guilty in return to charge or sentence concessions (Black`s
Law, 2004). In the most traditional and general sense “Plea bargaining” may be defined as an agreement
in a criminal case between the prosecution and the defense by which the accused changes his plea from
not guilty to guilty in return for an offer by the prosecution or when the judge has informally let it be
known that he will minimize the sentence if the accused pleads guiltyGenerally, the type of concessions
a defendant gets in exchange for pleading guilty determines the type of plea bargaining. Plea bargaining
that involves reduction of either the number of charges (counts) or the severity of charges (offences) is
commonly referred to as charge bargaining; whereas, a type of bargaining which involves a
recommendation of more lenient sentence is referred to as sentence bargaining. And there is also
specific bargaining

The advantage of plea bargaining is also presumed that the accused gains responsibility in his favour to
enter the correctional system in a frame of mind that may afford hope for rehabilitation over a shorter
period of time.and dis advantage.that it can very well be mis-used by the police asking the criminals to
accept their crime and reduce the punishment rather than suffering the painful merciless powerful hits
of the police.

REFERENCES ;Mizan law Review vol19 no 2 2016, Plea-bargaining Wikipedia, Indian Criminal law
lecturer note,

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