To ensure that the relevant facts are brought to the attention of the sentencing court, government counsel should: comment. JM 9-27.450 aims to facilitate compliance with Rule 11 of the Federal Code of Criminal Procedure and to provide protection against misunderstandings that may arise about the content of a plea agreement. Rule 11(c)(2) requires that a defence agreement be disclosed in open court (unless there is a valid reason, in which case disclosure may be made in camera), while Rule 11(c)(4) requires that the order provided for in the agreement be included in the judgment. Compliance with these requirements is facilitated if the agreement has been reduced in advance to written form. Whenever a defendant pleads guilty, this fact and the terms of the agreement must also be kept in the settlement record. Written agreements will facilitate the Department`s efforts to monitor prosecutors` compliance with Ministry policies and guidelines. The documentation may include a copy of the court transcript at the time of the plea hearing in open court. Each office has a formal system for approving negotiated pleas. Approval authority is vested in at least one U.S. Assistant Attorney or supervisory counsel from a litigation division within the Department of Justice who is responsible for assessing the adequacy of the plea agreement in accordance with Department of Justice direction with respect to the grounds for action. If certain foreseeable situations occur very frequently and are treated in the same way, the authorisation requirement may be satisfied by a written instruction from the competent superior detailing the standard opposition procedure to be applied, provided that this procedure is otherwise in accordance with departmental guidelines. An example would be a border district, which regularly handles a large number of cases of illegal aliens on a daily basis.
The guilt phase usually begins with the prosecutor`s opening statement. The defence has the option of making its own opening statement immediately thereafter or reserving its opening statement for the commencement of the main proceedings. The prosecutor then presents the government`s evidence using physical evidence and witnesses. The defence has the right to cross-examine all witnesses interviewed by the government. Once the government closes its case, the defence can get the court to acquit the accused on the grounds that there is insufficient legal evidence to convict him. If the court rejects the defence`s request, the defence may present its own arguments and the prosecutor may cross-examine all witnesses presented by the defence. After the defence, the prosecutor may present evidence to refute the accused`s case. Once the prosecutor has completed his closing argument, the defence may again request an acquittal. If the court rejects this request, the parties present their closing arguments: first the prosecutor, then the defence, and finally again the prosecutor (the government comes first and last because it bears the burden of proof). After closing arguments, the judge will inform the jury of the relevant law so that it is applicable. After that, the jury will retire to decide the case.
When the jury has made its decision, it returns to the courtroom and announces its verdict. If there is no jury, the judge will deliberate and render a verdict. If the verdict is guilty, the judge determines the sentence of the accused. During the sentencing process, the court may consider instructions from the U.S. Sentencing Commission, evidence presented at trial, and relevant information provided by the preliminary services officer, U.S. attorney, and defense counsel. The concession demanded by the government under a plea agreement, whether an « indictment », a « criminal agreement » or a « mixed agreement », should be assessed by the competent prosecutor in light of the likely advantages and disadvantages of the plea decision proposed in the particular case. Particular care must be taken when considering whether to conclude an agreement under which the respondent submits a Nolo Contendere objection. As noted in JM 9-27,500 and JM 9-16,000, there are serious objections to such objections and they should be dismissed unless the appropriate Deputy Attorney General concludes that the circumstances are so unusual that it would be in the public interest to accept such a plea. Current drug laws provide for harsher maximum and, in some cases, minimum penalties for many crimes based on an accused`s previous criminal convictions. See, for example, 21 U.S.C.
§§ 841(b)(1)(A), B, and (C), 848(a), 960(b)(1), (2) and (3), and 962. However, a court may impose such an aggravated sentence only if the United States Attorney General has provided it with information about previous convictions that must be relied upon prior to trial or prior to entering a guilty plea. See 21 U.S.C. § 851. In accordance with article 29 (a) of the Federal Code of Criminal Procedure, sufficient evidence to avoid acquittal is required. Further, for reasons of fundamental fairness and the effective administration of justice, no prosecution should be instituted against anyone unless government counsel considers that the admissible evidence is sufficient to obtain and support a guilty verdict by an impartial trier of fact.