Particularly in minor cases, where “mass production” techniques are employed to take pleas from up to 10 or so defendants simultaneously, the court may fail to comply with the formal requirements of the United States Constitution or (in federal cases) Rule 11 of the Federal Rules of Criminal Procedure.  If the court fails to advise the defendant of the nature of, and obtain a knowing and voluntary waiver of, the three fundamental rights to trial by jury, confrontation of witnesses, and the right to remain silent, the plea will be held invalid. 

 

            A plea of guilty is not voluntary if no one advised the defendant of his or her Fifth Amendment privilege against self-incrimination, and obtained a knowing and intelligent waiver of this right.  This argument is stronger if the defendant has never before been arrested or entered a plea, or been informed of these rights.

 

            It is important to examine the transcript and waiver form very carefully.  It is quite common for the boilerplate or court’s ad libbed advice of the right to remain silent to be incomplete.  For example, the court may advise the defendant of his right at trial to testify, or to remain silent.  In this case, the advice is invalid for failure to explain that the privilege against self-incrimination applies not only at trial, but also during the plea proceeding, where no one can force him or her to say anything that will incriminate the defendant, such as pleading guilty.  If this latter advice is not given, the plea is invalid.

 

            Conversely, the court may advise the defendant that no one can force him or her to plead guilty, without advising the defendant of the right to remain silent at trial.  Again, the plea would be invalid for failure to advise the defendant that this fundamental constitutional right applies at trial.

 

            The following argument is illustrative.

 

            The court’s failure to secure an informed waiver of the privilege against self-incrimination requires that the plea be vacated.[317]  It is true the transcript of the plea hearing need not affirmatively demonstrate that defendant was expressly advised of, and waived, the three critical constitutional rights referred to in Boykin, supra, but if it does not, “the state [is required to] prove, by evidence extrinsic to the transcript, that the plea was nonetheless voluntary and intelligent.”[318]

 

            The Ninth Circuit’s contemporary approach is exemplified by United States v. Mulloy.[319]  “Boykin identified reversible error in a trial court’s acceptance of a guilty plea without having created a record that affirmatively showed the plea to be knowing and voluntary.  Id. at 242.  That showing depends in part upon a valid waiver of the right against self-incrimination.  Id. at 243.”[320]  In that case, no plea transcript existed, and much of the discussion centered on who bore the burden of proof where the record was incomplete.  In many other cases, however, a complete record will exist to establish that one or more of the three fundamental rights were not waived in a knowing and intelligent fashion.

 

            The court identified the “crucial factual question whether Mulloy knew of his right against self-incrimination and intelligently waived it.”[321]  In the normal case, the violation will be established by the reporter’s transcript and the waiver form or plea agreement, constituting a plain and serious violation of the defendant’s constitutional rights.[322]

 

            Mulloy also stated:

 

We reject the government’s contention that the state court’s advice of other rights sufficed to inform Mulloy of his right against self-incrimination.  Nothing in the list of rights that was recited implicitly suggested that Mulloy had a right against self-incrimination that he was waiving. . . .  We have not adopted the view that notice of the rights to jury trial and to confront witnesses makes unnecessary ‘a ritualistic question to a defendant asking if he understands that he is waiving his right against self-incrimination.’  [Citations omitted.][323]

 

            The Ninth Circuit has emphatically held this type of error not to be harmless.[324]  A post-conviction petition or motion can reach constitutional violations in the entry of a plea of guilty, and nonconstitutional violations, such as errors under judicially created rules or rules of court such as Federal Rule of Criminal Procedure, Rule 11, if they are substantial and prejudicial.[325]  In a recent case, however, the Ninth Circuit has found harmless a district court’s failure to advise a defendant of his rights against self-incrimination and confrontation, emphasizing the defendant’s experience in the criminal justice system and the heightened standard of prejudice required in habeas corpus petitions.[326] 

 

            It also can be argued, as with the right to a jury trial, that the court must explain the nature of the right against self-incrimination before it can be said that the defendant entered a knowing and voluntary waiver. 

 

            The right against self-incrimination means that no defendant can be compelled to admit his guilt against his will.[327]  Any waiver following an admonition by the court that misstates or fails to convey this concept can be attacked as not being the product of a knowing and voluntary decision.[328]

[317] Boykin v. Alabama, 395 U.S. 238 (1969) (valid waiver of fundamental constitutional rights may not be presumed from a silent record).

[318] Pitts v. United States, 763 F.2d 197, 200 (6th Cir. 1985).

[319] United States v. Mulloy, 3 F.3d 1337 (9th Cir. 1993).

[320] Mulloy, supra, at 1338.

[321] Ibid. at 1341.

[322] United States v. Graibe, 946 F.2d 1428, 1430 n.1 (9th Cir. 1991); United States v. Butcher, 926 F.2d 811, 817 (9th Cir. 1991).

[323] Mulloy, supra, at 1341 n.4.

[324] United States v. Gastelum, 16 F.3d 996 (9th Cir. 1994); United States v. Jaramillo-Suarez, 857 F.2d 1368 (9th Cir. 1988).

[325] Fed.R.Crim.Pro.11(h); United States v. Patterson, 739 F.2d 191 (5th Cir. 1984) (prejudicial violation of Rule 11 required a hearing); United States v. Frye, 738 F.2d 196, 201 and n.6 (7th Cir. 1984); United States v. Mercer, 691 F.2d 343 (7th Cir. 1982) (granting § 2255 relief on nontechnical violation of Rule 11); Godwin v. United States, 687 F.2d 585, 590-591 (2d Cir. 1982) (granting § 2255 relief on grounds trial counsel’s failure to inform defendant of the nature of the charges and to satisfy itself of a factual basis were “substantial”); Mack v. United States, 635 F.2d 20 (1st Cir. 1980) (prejudicial failure to comply with Rule 11 required granting defendant an opportunity to plead anew); United States v. Scott, 625 F.2d 623 (5th Cir. 1980) (defendant alleged he would not have pleaded guilty but for the trial court’s failure to comply with Rule 11).

[326] United States v. Dawson, 193 F.2d 1107 (9th Cir. 1999).

[327] See State v. Carter, 243 Conn. 392 (1997) (“right against compulsory self-incrimination is . . . adequately covered when a defendant knows that he need not enter the plea of guilty and knows the effect of that plea”). 

[328] Johnson v. Zerbst, 304 U.S. 458 (1938); see also United States v. Lyons, 898 F.2d 210, 215 (1st Cir. 1990) (a knowing waiver requires that a defendant be fully informed about the right s/he is waiving).

POST CON RELIEF " GROUNDS " PRIVILEGE AGAINST SELF-INCRIMINATION " WAIVER
Mitchell v. United States, 526 U.S. 314, 321 (1999) (A witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373, 71 S.Ct. 438, 95 L.Ed. 344 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the waiver is determined by the scope of relevant cross-examination); quoting Brown v. United States, 356 U.S. 148, 154-155, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958).

Seventh Circuit

POST CON RELIEF " GROUNDS " PLEA AGREEMENT " WAIVER OF RIGHTS
United States v. Bahenz-Navarro, 678 F.3d 492, (7th Cir. Apr. 24, 2012) (district court did not err in rejecting defendants proposed guilty plea on the ground that he was unwilling to knowingly and voluntarily waive certain trial rights)