Mari Byrne


This Note addresses the ethicality of the baseless plea, a guilty plea entered by a defendant for a crime that everyone in the courtroom—judge, prosecutor, defense attorney, and defendant—knows the defendant did not commit. Used in the interest of efficiency and leniency, the baseless plea allows a defendant to plead guilty to a crime that has no basis in the facts of the case. Though used by courts in numerous jurisdictions, baseless pleas have been largely unaddressed as courts have sought to conceal the practice and as commentators have therefore failed to detect it. This Note seeks to remedy that omission by shedding light on baseless pleas and the ethical concerns this practice raises. This Note begins by describing baseless pleas, both the context in which, and the reasons for which, they are used. Next, this Note reviews the ethical duties of prosecutors, defense attorneys, and judges as they relate to baseless pleas. Then, this Note surveys the limited body of commentary on this practice, which consists of criminal justice policy and legal ethics arguments made by courts and commentators in support of, and in opposition to, these pleas. Ultimately, this Note concludes that regardless of the justifications offered in support of this practice, including the interest in efficiency, prosecutors and judges cannot participate in baseless pleas because the practice defies their ethical responsibilities to uphold the integrity of the court and legal profession and to ensure the fairness of the criminal process. This Note ends with a proposal to clarify the ethical prohibition against baseless pleas by amending legal ethics rules to clarify prosecutors’ probable cause obligation and by installing prosecutorial and judicial policies that bar prosecutors and judges from participating in baseless pleas.

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