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3 Concordia L. Rev. 102 (2018)
Conviction beyond a Reasonable Suspicion: The Need for Strengthening the Factual Basis Requirement in Guilty Pleas

handle is hein.journals/concordia3 and id is 104 raw text is: CONVICTION BEYOND A REASONABLE SUSPICION? THE NEED FOR STRENGTHENING THE FACTUAL BASIS REQUIREMENT IN GUTLTY PLEAS Myeonki Kim* Does the court, before accepting a guilty plea, check the accuracy of the plea agreement in any significant way? This article addresses the issues on judges being unconcerned or the inconsistent practice of guiding the stages of guilty plea. The article further suggests that the judge should carefully review its factual basis to avoid a wrongful guilty plea. Although Rule 11(b) of the Federal Rule of Criminal Procedure requires the judges to check the factual basis of the guilty plea, the rule is not paid much attention to legal professionals. Setting the adversarial culture aside, the rule itselfhas a structural problem not to be enforced properly during a plea colloquy. Instead of revising the rule, this article proposes a newer interpretation to induce judges more responsible to confirm the factual basis. This could be a practical solution 1) to filter out an inaccurate pleading guilty, 2) to increase the accountability of the prosecution in guilty plea, and 3) to help the defendant make more informed plea decisions. INTRODUCTION.................................................103 I. THE QUESTIONABLE PRACTICE OF PLEA BARGAINING: BY-PRODUCT OF ADVERSARIAL EXCESSES .............................................105 A. The American Way of Plea Bargaining .................105 B. Doubts Surrounding the Accurate Plea Bargaining Process.... 110 C. The Limits of Existing Research ................ ......114 II. A REALISTIC ALTERNATIVE: REINVIGORATING THE FACTUAL BASIS REQUIREMENT ............................................ .....118 A. The Factual Basis Requirement: Unnoticed Safeguard...............118 B. Ways to Reinvigorate the Factual Basis Requirement ................123 C. How It Would Work..............................129 III. REFUTING ANTICIPATED COUNTERARGUMENTS ...................134 A. Concerns for Inertia of Adversary Philosophy.................134 * Clinical Professor, Korean National Police University. S.J.D., University of Wisconsin Law School, 2017; LL.M.-LI, University of Wisconsin Law School, 2014; LL.B., Korean National Police University, 2004. I would like to thank Professor Keith A. Findley and Carrie Sperling for their helpful comments on the draft of this Article. I am also grateful to my friend Alice Cho for her excellent editorial assistance. All errors are mine alone. This article is part of my S.J.D. dissertation on the critical analysis of the American adversary system.