**Should the Military Adopt**

**an *Aford-*Type Guilty Plea?**

[Major Steven E. Walburn]{.smallcaps}[^1]

*I am absolutely, positively, 100% not guilty!*[^2]

# Orenthal James Simpson

## I. Introduction

Specialist Jones is married with two small children. He works in a
battalion S-1 office with Private First Class Smith, an attractive
female soldier who is new to the unit. Smith is happily married and has
a two-year-old child. Over time Specialist Jones finds himself
increasingly attracted to Private Smith.

Specialist Jones finally confides in Private Smith his feelings and his
desire to have an affair. Private Smith rebuffs him, and demands that he
leave her alone. His feelings for Private Smith growing every day,
Specialist Jones continues to badger her. He is careful, however, to
always approach Private Smith when they are "alone." Finally Jones
decides he must "have" Smith and begins planning to rape her.

Specialist Jones knows that Private Smith's husband is away on temporary
duty in Cuba. His own wife and child have gone out of town to visit her
parents. After dark one evening Specialist Jones drives to Private
Smith's neighborhood and waits until after midnight. Once confident that
Private Smith has gone to bed, Jones carefully climbs through the
kitchen window of Private Smith's quarters. Once inside, he dons a ski
mask and enters Private Smith's bedroom.

Jones brutally rapes Private Smith. Although she resists the attack,
Jones repeatedly beats her until she slips into unconsciousness. After
regaining consciousness, Smith is able to call the military police and
report the rape. As a result of the assault Smith suffers broken ribs
and a severe concussion. Since the attack, Private Smith has frequent
nightmares and is often withdrawn. She regularly sees a psychologist and
her relationship with her husband has greatly deteriorated.

The subsequent investigation immediately focuses on Jones, eventually
leading to his apprehension. The government assembles an impressive
amount of circumstantial scientific evidence linking Specialist Jones to
the crime. He is charged with housebreaking,[^3] assault with intent to
commit rape,[^4] and rape.[^5] Private Smith is extremely reluctant to
testify against Specialist Jones. Her psychologist indicates Smith is
terrified of Jones and suffers memory lapses which makes her potential
testimony unreliable.

Specialist Jones has his own demons to deal with. Fearful of receiving
substantial confinement[^6] he steadfastly maintains his innocence.
After careful consultation with his defense attorney, and a review of
the government's evidence, Specialist Jones concludes he will almost
certainly be convicted of these crimes. Specialist Jones informs his
defense attorney he will do anything to avoid the potential of serving
extensive confinement except admit his guilt. He informs his attorney
that he "didn't do it," but he doesn't want his family to suffer through
the stress and uncertainty of a fully contested trial.

As a result of lengthy negotiations, the government indicates a
willingness to enter into a pretrial agreement limiting confinement to
no more than 20 years if Specialist Jones will plead guilty as charged.
Despite the defense counsel's best efforts, Specialist Jones will not
agree to admit he committed the offenses. He will agree, however, to
enter a plea of guilty in order to take advantage of the government's
sentence limitation offer.

Assuming the government agrees, should Specialist Jones be permitted to
avoid an express admission of culpability while entering a plea of
guilty in order to receive a favorable pretrial agreement?

This type of guilty plea, known as an *Alford* plea (after the case in
which it was judicially recognized by the United States Supreme Court,
*North Carolina v. Alford)**,*[^7] is now widely recognized in state and
federal courts. The *Alford* plea is not presently recognized in the
military justice system.[^8]

A variety of factors convince civilian defendants to seek plea
agreements allowing them to avoid the admission of guilt. They may wish
to take advantage of attractive pretrial agreements rather than risk
adverse trial results and potentially lengthy prison sentences. Some
wish to avoid the publicity of a fully contested trial. Others might
lack the necessary factual basis to plead guilty because voluntary
alcohol or drug use has rendered them unable to remember committing the
crime.[^9] Still others may very well be innocent, but the overwhelming
strength of the government's case makes going to trial seem fruitless.

For most of our judicial history accuseds in these circumstances had
only two choices: take their chances at trial or plead guilty. By
admitting guilt, these defendants were able to take advantage of
favorable pretrial agreements. Unfortunately, in order to do so, some
were forced to lie to their attorneys and the court concerning their
true culpability. Both of these alternatives are objectionable to
defendants and conflict with society's moral expectations of its
criminal justice system.[^10] The *Alford* plea attempts to ease the
tension these choices generate by offering a third alternative: a guilty
plea without an express admission of criminal culpability.

This article investigates the history of the *Alford* plea and its close
cousin, the *nolo contendere* plea as authorized under Rule 11(b) of the
Federal Rules of Criminal Procedure.[^11] It also analyzes the
advisability of adding an *Alford*-type guilty plea to the options
presently available to accuseds in the military justice system. [^12]
Section II of this article traces the history of the *nolo contendere*
plea and examines present-day guilty plea practice in federal courts
which is governed by Federal Rule of Criminal Procedure 11 and several
Supreme Court decisions. Section III examines current guilty plea
practice in the military, which (but for an *Alford*-type guilty plea)
is similar to guilty plea practice in the federal courts.

Section IV examines the Supreme Court's landmark decision in *Alford.*
This section also discusses the recognition of the plea, the Court of
Military Appeal's rejection of it in *United States v. Epps,*[^13] and
the present status of the plea. Section V discusses the potential
advantages and disadvantages of the *Alford* plea from the perspective
of the government and defense.

Section VI examines several issues generated by the military's adoption
of an *Alford*-type plea. These include: (1) what preliminary inquiry,
if any, should be conducted by the military judge prior to accepting the
plea; (2) what standard of proof should be required to establish the
factual basis of the plea; (3) how useful will stipulations[^14] be in
meeting this standard of proof? (4) the extent (during sentencing) an
*Alford* plea should be considered as aggravation or mitigation; and (5)
what jury instructions, if any, should be developed to properly instruct
members concerning the existence and effect of the accused's *Alford*
plea?[^15] Section VII outlines the author's opinion that the military
should adopt an *Alford*-type plea as an additional option available to
an accused servicemember.

To properly place *North Carolina v. Alford* in perspective requires a
discussion of the judicial development of guilty pleas in the federal
courts followed by an in-depth examination of the plea of *nolo
contendere* under Federal Rule of Criminal Procedure 11. Our discussion
begins with a history of present day federal guilty plea practice.

### II. Present Guilty Plea Practice 

### in the Federal Courts

### A. The Courts

The basis for the present rules pertaining to guilty pleas in our
federal courts is derived from several Supreme Court decisions decided
between 1968 and 1970. The first of these is *McCarthy v. United
States*.[^16] In *McCarthy* the defendant pleaded guilty to income tax
evasion. At trial the judge failed to personally question McCarthy
concerning the factual basis and circumstances of his criminal
conduct.[^17] During the sentencing phase of the trial, McCarthy's
attorney argued that McCarthy's failure to pay the disputed taxes was
due to poor health, alcoholism, and poor record keeping.

Rule 11(c) of the Federal Rules of Criminal Procedure directs the trial
judge to inquire whether a defendant who pleads guilty understands the
nature of the charge against him and the consequences of his plea. In
*McCarthy* the Court held that Rule 11(c)'s requirement to personally
address the defendant must be carefully followed.[^18] The Supreme Court
was careful to point out that its decision was based on its
interpretation of Rule 11. The *McCarthy* decision implied that strictly
following Rule 11(c) helps to establish the validity of a guilty plea,
making it less vulnerable to post-conviction attack.[^19] The Court
reasoned that the validity of the plea was strengthened by ensuring a
defendant clearly understood the charges faced, and the consequences, of
his plea of guilt.

In *Boykin v. Alabama*[^20] the defendant pleaded guilty to five counts
of armed robbery. The trial judge did not make a determination of the
knowing and voluntary nature of the defendant's understanding and
agreement with the charges. In fact, the defendant did not make any
statements concerning the offenses. A jury sentenced Boykin to death.

The Supreme Court held that a knowing waiver of due process rights could
not be presumed from a silent record. The Court, citing *McCarthy*, also
implied that procedures like Rule 11 may be constitutionally necessary
before a court can accept a guilty plea.[^21] The Court noted:

> If a defendant's guilty plea is not equally voluntary and knowing, it
> has been obtained in violation of due process and is therefore void.
> Moreover, because a guilty plea is an admission of all the elements of
> a formal criminal charge, it cannot be truly voluntary unless the
> defendant possesses an understanding of the law in relation to the
> facts.[^22]

Three subsequent Supreme Court rulings, decided on the same day,[^23]
further examined the process constitutionally required to preserve
guilty pleas.

The defendant in *Brady v. United States*[^24] was prosecuted under the
Federal Kidnapping Act, which authorized the death penalty.[^25] This
Act, however, permitted defendants to automatically avoid a death
penalty by pleading guilty.[^26] Faced with this choice, Brady pleaded
guilty.

Brady's attorney challenged the constitutionality of the Act by
asserting that it impermissibly coerced defendants into pleading guilty.
The *Brady* Court held two factors were key in determining if the guilty
plea was properly accepted by the trial court: (1) whether the defendant
understood the nature of his plea; and (2) whether it was made
voluntarily. The Court found Brady's decision to plead guilty was both
knowing and voluntary. The fact that Brady pleaded guilty in the face of
a statute which "encouraged" guilty pleas did not invalidate an
otherwise proper plea.[^27]

In *McMann v. Richardson*[^28] the defendant challenged the propriety of
a guilty plea entered after alleging the police had coerced him into
confessing. The Supreme Court, while finding that the confession was
coerced (and therefore illegally obtained), held the defendant's ability
to consult with counsel after the confession, but before his decision to
plead guilty, attenuated any taint the prior coerced confession may have
had on his decision to plead guilty.

More importantly, Justice White, writing for the Court, held a knowing
and voluntary decision to *plead* (as opposed to confess) based upon
"reasonably competent" legal advice is not subject to subsequent attack
by the defendant. This is true even if the defendant misjudges the
strength of the government's case.[^29]

*Parker v. North Carolina*[^30] involved an attack upon a North Carolina
statute which "rewarded" guilty pleas by eliminating the possibility of
receiving the death penalty.[^31] On appeal, the defendant argued his
attorney had improperly advised him that his confession was
admissible.[^32] Justice White, again writing for the Court*,* held that
even if the legal advice given Parker was inaccurate,[^33] this did not
overcome the knowing and voluntary nature of Parker's plea. As shown in
the record, the trial judge's inquiries clearly established the fact
Parker had admitted his guilt at trial but was now seeking to disavow
the admission upon subsequently discovering that his previous confession
might have been inadmissible.

One additional case, *Tollett v. Henderson,*[^34] played an important
role in the development of modern day guilty plea practice. The
defendant in *Tollett,* like the defendant in *Parker*, argued he had
pleaded guilty only after receiving improper legal advice from his
defense attorney. The *Tollett* Court rejected this argument, holding
that a guilty plea could not be collaterally attacked unless the advice
of counsel rendered to a defendant fell outside the "reasonably
competent" standards set forth in *McMann v. Richardson*.[^35] Again,
the Court emphasized that the trial judge had conducted an appropriate
inquiry prior to accepting the guilty plea.

The following conclusions can be drawn from these decisions: first, the
only constitutional requirements of a guilty plea are that it be a
voluntary, knowing, and intelligent choice among the options facing a
defendant; second, even if the defendant has received erroneous legal
advice (either concerning the strength of the government's case or the
admissibility of evidence), an otherwise properly accepted guilty plea
will not be overturned on appeal; and third, in examining post-trial
challenges to guilty pleas, the Supreme Court will rely heavily on the
evidence in the record of the accused's guilt. These cases form the
backdrop to examine Federal Rule of Criminal Procedure 11, which
statutorily governs guilty pleas in federal courts.[^36]

**B. Federal Rule of Criminal Procedure 11 (Rule 11)**

*1. Rule 11 Guilty Pleas*

Rule 11(a) permits criminal defendants in federal court to plead guilty,
not guilty, or *nolo contendere*.[^37] Not surprisingly, the development
of Rule 11 has closely followed the just-discussed decisions of the
Supreme Court.

Under Rule 11(e)(1) the defendant and the government may engage in plea
bargaining discussions.[^38] The court must ensure that the defendant is
voluntarily making the plea.[^39] The court should also ensure that any
plea agreement is disclosed in open court. The court may accept or
reject the plea agreement.[^40] If the plea agreement is rejected the
defendant may still enter a guilty plea without benefit of a pretrial
agreement.[^41] Rule 11(f) does not require the factual basis to meet
any particular standard (i.e., preponderance, clear and convincing, or
beyond a reasonable doubt).[^42]

*2.* *Nolo Contendere Pleas*

Rule 11(b) allows the plea of *nolo contendere*. *Nolo contendere* is a
Latin phrase meaning "I will not contest it." When entering a plea under
Rule 11(b), the defendant does not admit or deny the charges he is
facing but also does not contest an entry of guilt by the court. A fine
or prison sentence may be imposed pursuant to this plea.[^43]

The plea of *nolo contendere* was recognized at common law in the United
States.[^44] In 1926 the United States Supreme Court, in *Hudson* *v.
United States,*[^45] was faced with deciding if a federal court had the
power to impose a prison sentence after accepting a *nolo contendere*
plea.

Justice Stone, writing for the Court, traced the history of the plea of
*nolo contendere*.[^46] The plea may have originated in an early
medieval practice by which defendants wishing to avoid imprisonment
would seek to make an end of the matter by offering to pay a sum of
money to the king.[^47] An early 15th-century case indicated that a
defendant did not admit his guilt when he sought such a compromise, but
merely "that he put himself on the grace of our Lord, the King, and
asked that he might be allowed to pay a fine."[^48] Justice Stone,
noting that federal courts had embraced the *nolo contendere* plea,
upheld the propriety of imposing a prison sentence (as permitted by the
Probation Act of 1925)[^49] after acceptance of the plea.

Throughout its history, the plea of *nolo contendere* has not been
viewed as an express admission of guilt, but as consent by the defendant
that he may be punished as if he were guilty.[^50] It was thought
desirable to permit defendants to plead *nolo* *contendere* without
making any inquiry into their actual guilt.[^51] Therefore, if the court
accepts a *nolo contendere* plea, under Rule 11(f) there is no
requirement to make a factual inquiry (of the accused) concerning the
accuracy of the plea.[^52]

However, there are several other steps federal trial courts must follow
prior to accepting a Rule 11(b) plea of *nolo contendere.*[^53] The
trial judge must address the defendant personally in open court, and
pursuant to Rule 11(c), the judge must inform the defendant of, and
determine the defendant understands, the following rights:

> \(1\) the nature of the charges and the mandatory minimum and maximum
> punishments;
>
> \(2\) the right to be represented by an attorney at every stage of the
> proceeding and, if necessary, the appointment of an attorney to
> represent him;
>
> \(3\) the right to plead not guilty;
>
> \(4\) the right to a jury trial;
>
> \(5\) the right to the assistance of counsel;
>
> \(6\) the right to confront and cross-examine adverse witnesses;
>
> \(7\) the right against compelled self-incrimination;
>
> \(8\) that by pleading *nolo contendere* the defendant waives the
> right to trial; and
>
> \(9\) that if the defendant is questioned under oath, on the record,
> the defendant's answers may later be used against him in a prosecution
> for perjury or false statement.[^54]

The plea of *nolo contendere* is an attractive alternative to defendants
because a conviction based on this plea cannot subsequently be used
against them in a later civil or criminal proceeding.[^55] This rule of
"non-use" is consistent with the lack of a factual inquiry into the
actual guilt of the defendant. The prosecution may oppose a *nolo
contendere* plea when seeking a definite resolution of the defendant's
guilt or innocence for either correctional purposes[^56] or for reasons
of subsequent litigation.

Although the plea of *nolo contendere* has long existed in federal
practice, the desirability of this plea has been a subject of some
disagreement.[^57] Courts view the desirability of the *nolo contendere*
plea from both ends of the spectrum. One view is that the plea should be
rejected unless a compelling reason for acceptance is established.[^58]
On the other hand is the position that the plea should be accepted in
the absence of a compelling reason to the contrary.[^59] With an
understanding of the history, procedures and usage of Rule 11 guilty
pleas and the plea of *nolo contendere*, a discussion of guilty plea
practice in the military is in order.

### III. Present Guilty Plea Practice in the Military

### A. The Acceptance of Guilty Pleas

The procedure for entering and accepting guilty pleas in the military is
similar to that practiced in the federal courts. Military guilty plea
practice is primarily governed by Article 45, Uniform Code of Military
Justice (UCMJ), and Rule for Court Martial (R.C.M.) 910. The principal
focus of military guilty plea practice is to ensure there is a factual
basis for the plea and that no matter inconsistent with the plea is left
unresolved.[^60]

In pertinent part Article 45 states:

> If an accused after . . . a plea of guilty sets up any matter
> inconsistent with the plea, or if it appears that he has entered the
> plea of guilty improvidently or through lack of understanding of its
> meaning and effect . . . a plea of not guilty shall be entered in the
> record, and the court shall proceed as though he had pleaded not
> guilty.[^61]

Like Federal Rule 11(c), R.C.M. 910(c) requires the military judge to
address the accused personally prior to accepting a plea of guilty and
inform him of the following:

> \(1\) The nature of the offense and the mandatory minimum and maximum
> possible penalties;

\(2\) The right to counsel;[^62]

\(3\) The right to plead not guilty;

\(4\) The right to be tried by a court-martial;

\(5\) The right to confront and cross-examine witnesses;

\(6\) The right against self-incrimination;

> \(7\) If the accused persists in his plea of guilty to certain
> offenses there will be no trial as to those offenses;
>
> \(8\) By pleading guilty the accused waives the rights described in
> subsection (c)(3) of this Rule; and
>
> \(9\) The accused will be questioned under oath concerning the
> offenses plead guilty to.[^63]

The personal inquiry of the accused conducted by the military judge is
often referred to as the *Care* inquiry.[^64] Like Rule 11(f), R.C.M.
910(e) doesn't require the factual basis to meet any particular
standard, (i.e., preponderance, clear and convincing, or beyond a
reasonable doubt).

If a plea agreement exists, the military judge must also ensure the
accused understands the meaning and effect of the agreement.[^65] In the
military a pretrial agreement consists of two parts. The first part
contains the promises of the accused and the government's agreement to
be bound by a particular sentence limitation (which is not disclosed in
this document).[^66] The second part of the agreement, called the
"quantum" portion, contains the actual sentence limitation. The quantum
portion of the pretrial agreement is not known by the court-martial
panel or the military judge in a judge-alone case until after the
sentence has been announced.[^67]

Once the sentence has been announced[^68] the quantum portion of the
pretrial agreement must be explained to the accused.[^69] If the accused
does not understand (or agree) with this portion of the pretrial
agreement, the agreement must be conformed to the accused's
understanding (and/or the intent of the accused and government), or the
accused may withdraw his guilty plea.[^70]

### B. Rejection of the *Alford* Plea in the Military

Consistent with the requirements of Article 45, UCMJ and R.C.M. 910, the
military has refused to recognize the *Alford* plea. In *United States
v. Epps*[^71] the Court of Military Appeals[^72] rejected the use of an
*Alford-*type guilty plea. The COMA ruled that while *Alford* may
establish the minimum constitutional requirements for an acceptable
guilty plea, the military imposes a higher standard.

Therefore, while federal and military guilty plea procedures are quite
similar, neither Rule 11(b) pleas of *nolo contendere* nor *Alford*
pleas are presently recognized in the military justice system*.*[^73] We
next examine in detail the guilty plea option judicially created by the
United States Supreme Court in *Alford*.

### IV. North Carolina v. Alford

### A. A Plea is Born

In 1963 Henry Alford was indicted for first-degree murder. In-court
testimony revealed that Alford and the murder victim had argued at the
victim's house. Alford left, and a short time later the victim answered
a knock at his door. Before completely opening the door the victim was
fatally shot. There were no eyewitnesses. Additional testimony revealed
that earlier Alford had taken his shotgun from his home and threatened
to kill the victim. Even more damaging to Alford, after the victim's
death, witnesses related that Alford claimed that he had killed
him.[^74]

Under North Carolina law at the time, the death penalty was automatic
upon conviction for first-degree murder if two circumstances were met:
(1) the defendant pleaded not guilty; and (2) the jury did not
positively recommend a life sentence.[^75] Although Alford faced
mandatory life imprisonment if he pleaded guilty to first-degree murder,
he could avoid the death penalty by his guilty plea.[^76]

Alford persisted in his claim of total innocence; but after consultation
with his court-appointed attorney, he agreed to plead guilty to
second-degree murder. He insisted he was pleading guilty only to avoid
the almost certain death penalty he faced if convicted after contesting
the charge.[^77]

The trial court established that Alford's attorney had adequately
explained to his client the difference between first- and second-degree
murder, and of his right to a fully-contested trial. Alford's attorney
recommended he accept the plea-bargained deal based on the strong
evidence in the state's possession of his guilt.[^78] Throughout his
trial Alford maintained his innocence while steadfastly indicating his
desire to plead guilty.[^79] The trial judge eventually accepted
Alford's plea and sentenced him to the maximum penalty for second-degree
murder, thirty years confinement.

On appeal, Alford sought a new trial, arguing he had been coerced into
pleading guilty by fear of the death penalty. The Supreme Court of North
Carolina held that Alford's plea was knowing and voluntary.[^80] Alford
next petitioned for a writ of habeas corpus, first in the United States
District Court for the Middle District of North Carolina, then in the
Court of Appeals for the Fourth Circuit.[^81] Both courts, relying on
the findings of the state court, denied Alford's writ.[^82] Each court
found Alford's plea to have been knowingly and intelligently made.

Undeterred, Alford again petitioned for a writ of habeas corpus in
federal district court. The district court again denied relief. The
trial judge considered an inquiry into the voluntariness of Alford's
plea foreclosed by the prior action of the court.[^83] Alford appealed,
and a divided panel for the Fourth Circuit reversed, holding that
Alford's plea was involuntary since it was based on his fear of the
death penalty.[^84]

In reversing, the Fourth Circuit relied heavily upon the Supreme Court's
1968 decision in *United States v. Jackson.*[^85] In *Jackson* the
Supreme Court held the death penalty provision of the Federal Kidnapping
Act was unconstitutional as it made "the risk of death the price for
asserting the right to a jury trial and thereby impaired free exercise
of that constitutional right."[^86] The Fourth Circuit invalidated North
Carolina's statute reasoning that the statute impermissibly "encouraged"
Alford to waive his constitutional rights in order to remove the threat
of the death penalty.[^87]

In a six-to-three decision[^88] the Supreme Court vacated the judgment
of the Fourth Circuit and remanded the case for further
proceedings.[^89] Authoring the majority opinion, Justice White, citing
*Brady v. United States,*[^90] wrote that a guilty plea representing "a
voluntary and intelligent choice among the alternative courses of
action" is not compelled within the meaning of the Fifth Amendment.[^91]
This is true even if the accused is unable (or unwilling) to admit his
participation in the acts constituting the crime.[^92]

Justice White further opined:

Ordinarily, a judgment of conviction resting on a plea of guilty is
justified by the defendant's admission that he committed the crime
charged against him and his consent that judgment be entered without a
trial of any kind. The plea usually subsumes both elements, and
justifiably so, even though there is no separate, express admission by
the defendant that he committed the particular acts claimed to
constitute the crime charged in the indictment.[^93]

The *Alford* Court established that if a guilty plea is voluntarily
made, an express admission of culpability is not constitutionally
required for conviction. Justice White compared Alford's plea to a plea
of *nolo contendere*:

> Nor can we perceive any material difference between a plea that
> refuses to admit commission of the criminal act and a plea containing
> a protestation of innocence when, as in the instant case, a defendant
> intelligently concludes that his interests require entry of a guilty
> plea and the record before the judge contains strong evidence of
> actual guilt.[^94]

The Court, therefore, found little practical difference between pleas of
*nolo contendere,* which had long been accepted by courts under common
law and Rule 11(b), and the plea entered by Alford. Based on the Court's
rationale, the only difference between an *Alford* plea and a plea of
*nolo contendere* is the absence of the factual basis for the plea when
accepting *nolo contendere* pleas.[^95]

*Alford* establishes that two criteria be met before the trial court can
accept an *Alford* plea: (1) the defendant must intelligently conclude
it is in his best interest to plead guilty; and (2) there must be
evidence in the record of actual guilt.[^96] The Court found the
testimony presented in Alford's trial established a strong factual basis
of his guilt.[^97] Additionally, the Court found that Alford had clearly
expressed his desire to enter the plea.[^98] Based on this analysis, the
majority concluded the trial judge had not committed error by accepting
Alford's plea.[^99]

Thus, based on *Alford* a trial court should not accept a guilty plea
when the defendant claims innocence until, at a minimum, the court has
established the factual basis required by Federal Rule of Criminal
Procedure 11(f)*.* A Rule 11(f) factual inquiry attempts to resolve the
conflict inherent between the waiver of trial and the claim of
innocence.[^100] Importantly, courts must establish the factual basis
for such pleas from evidence outside the statements of the
accused.[^101] It is this aspect of *Alford* (the quantum of proof
required to establish the factual basis of the guilty plea) which has
generated the most disagreement among the lower courts.

B. The Standard of Proof Required to Establish Guilt

Before Accepting an *Alford* Plea

Did the *Alford* majority intend to require the lower courts to employ a
higher standard of proof than required by Rule 11(f) before accepting
*Alford-*type guilty pleas, or was it simply commenting on the quantum
of evidence present in the *Alford* case only? The disagreement among
lower courts concerning the required standard undoubtedly results from
the lack of guidance given by the Supreme Court in *Alford* concerning
this issue.

Standards have varied widely, from "evidence merely sufficient to avoid
a directed verdict,"[^102] to a statutorily required standard of beyond
a reasonable doubt.[^103] The Federal Courts of Appeals are almost
equally split over this issue. The Fourth,[^104] Sixth,[^105] and
Tenth[^106] Circuits have held *Alford* requires no higher standard than
Rule 11(f), which grants the trial judge wide discretion in determining
if a factual basis exists. The Third,[^107] Seventh,[^108] and
Ninth[^109] Circuits require "strong evidence" in addition to Rule
11(f)'s establishment of a factual basis. The Fifth Circuit requires a
factual basis "precise enough and sufficiently specific to show that the
accused's conduct on the occasion involved was within the ambit of that
defined as criminal."[^110]

The Ninth Circuit, in *United States v. Alber,*[^111] adopted the
requirement of a "strong factual basis" if the defendant enters a guilty
plea while continuing to assert his innocence.[^112] However, at another
point in its opinion, the *Alber* court states, "The court need not be
convinced beyond a reasonable doubt than (*sic*) an accused is guilty.
It need only be convinced that there is sufficient evidence to justify
the reaching of such a conclusion."[^113]

In *United States v. Morrow*[^114] the Fourth Circuit stated: "because
an *Alford* plea is a variation of a guilty plea, a court accepting such
a plea must comply with the basic requirements outlined in Fed. R. Crim.
P. 11(f)."[^115] Morrow charged that the trial court's acceptance of his
plea was in error because it lacked a strong factual basis.[^116] The
Fourth Circuit held a trial court has wide discretion in determining
whether a factual basis exists.[^117] Although the court held compliance
with Rule 11(f) was sufficient to establish the factual basis of
Morrow's plea, it also opined that Rule 11 itself required a "strong"
factual basis.[^118]

Contrast *Morrow* with *United States v. Tunning*.[^119] In *Tunning*
the Sixth Circuit held there is no "special" factual requirement when
accepting an *Alford* plea. After analyzing many of the other Circuit's
decisions, including *Alber* and *Morrow*, Judge Ryan, writing for the
majority, stated:

> We hold today that there is no difference in the requirements of Fed.
> R. Crim. P. 11(f) for a defendant who pleads guilty and admits to acts
> constituting the crime and a defendant who pleads guilty but who
> either 1) affirmatively protests his innocence or 2) refuses to admit
> to acts constituting the crime; that is, either of the two possible
> *Alford*-type guilty pleas. "\[S\]trong evidence of actual guilt" is
> not necessary to satisfy Rule 11(f), even where a defendant protests
> his innocence. Just as for any guilty plea, when a defendant desires
> to enter an *Alford*-type guilty plea, Fed. R. Crim. P. 11(f) requires
> only that the district court "satisfy it\[self\] that there is a
> factual basis for the plea." *United States v. Tunning*, 69 F. 3d at
> 111-12.

The Tenth Circuit, in *United States v. Keiswetter*, highlights the
lower court's confusion concerning the factual basis requirement of an
*Alford*-type guilty plea:

> Contrary to the assertion in the dissent, it is not clear that
> *Alford* mandated a finding of "strong evidence" in every case.
> Rather, because the record in that case revealed "strong evidence" of
> the defendant's guilt, the plea of guilty was not constitutionally
> infirm. Neither *Alford*, nor any case subsequent to *Alford*, suggest
> that "strong evidence" is the only constitutionally adequate standard
> for the acceptance of an *Alford* plea. The outer limits of factual
> basis sufficiency for an *Alford* plea have yet to be defined.[^120]

With this backdrop, courts, while recognizing the validity of the plea,
have taken different paths in determining the propriety of accepting
*Alford*-type guilty pleas.

### C. The Acceptance of *Alford* Pleas

Although the courts have recognized the validity of the *Alford* plea,
they have taken different paths in addressing the desirability of
accepting such pleas. The Supreme Court in *Alford* held that a trial
court does not violate due process when accepting a guilty plea from a
defendant claiming innocence.[^121] The Court also made clear that
criminal defendants do not have a *right* to acceptance of their
*Alford* pleas.[^122] *Alford* expressly notes that states are free to
accept or reject the use of such pleas.[^123] Federal judges are
likewise free to reject *Alford* pleas (as well as *nolo contendere*
pleas entered pursuant to Rule 11).[^124] However, the Court did not
delineate the scope of the trial judge's discretion in accepting or
rejecting *Alford* pleas.

Various circuits have accepted the Supreme Court's invitation in
*Alford* to explore the scope of the trial court's discretion to accept
or reject a guilty plea.[^125] A majority have held that a district
court can reject a guilty plea simply because the defendant protests his
innocence.[^126] One commentator, referring to the wide latitude invited
by the Supreme Court's language, has written "the practical effect is to
create a system in which defendants have no rights and trial courts can
do no wrong."[^127] Contrary to this view, trial courts have not been
automatically affirmed when rejecting *Alford-*type guilty pleas. An
example is *United States v. Gaskins.*[^128]

In *Gaskins* the United States Court of Appeals for the D.C. Circuit
held the trial judge abused his discretion by rejecting Gaskin's guilty
plea solely because he refused to admit guilt. Such an outcome was also
suggested in *Farley v. Glanton*[^129] where, in a footnote, the Supreme
Court of Iowa stated that a policy of uniformly refusing *Alford* pleas
might amount to refusal by the judge to exercise his discretion (which
would constitute reversible error).

In *United States v. Cox,*[^130] a decision by the United States Court
of Appeals for the Seventh Circuit, the trial judge's rejection of an
*Alford* plea was found proper because it preserved the appearance of
fairness of the justice system in the public's eye.[^131] Additionally,
the Seventh Circuit emphasized the importance of giving the trial judge
wide discretion in this area:

> Restricting a district court's discretion to reject *Alford* pleas
> could produce even more difficulties. We could not support a principle
> under which, if the \[trial\] court refused to accept a plea, the
> defendant after trial and a conviction and a sentence not to his
> liking could return and freely litigate the correctness of the court's
> finding that the requirements of Rule 11 had not been fully met.[^132]

Perhaps because of this conflict between guilt and innocence inherent in
permitting a defendant to enter an *Alford* plea, its acceptance by the
lower courts has been "luke-warm."

### D. The Present Status of the *Alford* Plea

Many state and federal courts have embraced the *Alford* plea.[^133] A
few states, however, have refused to recognize *Alford-*type guilty
pleas. These states, like the military, require a defendant who pleads
guilty to personally admit they committed the crimes charged.[^134]
According to at least two commentators, the *Alford* plea has fallen
into general disfavor.[^135] This position of disfavor is not without
support as several courts have commented on the "unusualness" of such a
plea. For example, in *United States v. Morrow*[^136] the Fourth Circuit
stated:

> We agree with the Fifth Circuit's assessment of the plea: Although
> excellent reasons exist for permitting an *Alford* plea, the logic
> underlying this type of plea is counter-intuitive. The average
> defendant may have some difficulty reconciling himself to the notion
> of pleading guilty while maintaining his innocence.... It is essential
> that a court accepting an *Alford* plea make every effort to ensure
> that a defendant recognize precisely what his plea entails.[^137]

*Alford* pleas are clearly disfavored by the Department of Justice.
According to the Principles of Federal Prosecution:[^138]

> The attorney for the government should not, except with the approval
> of the Assistant Attorney General with supervisory responsibility over
> the subject matter, enter into a plea agreement if the defendant
> maintains his innocence with respect to the charge or charges to which
> he offers to plead guilty. If the defendant tenders a plea of guilty
> but denies that he has in fact committed the offense(s), the attorney
> for the government should make an offer of proof of all facts known to
> the government to support the conclusion that the defendant is in fact
> guilty.[^139]

The Comment to this section states that despite the constitutional
validity of *Alford* pleas, such pleas should be avoided except in the
most unusual circumstances, even if no plea agreement is involved and
the plea would cover all pending charges.[^140] According to the
Comment, such pleas are particularly undesirable when entered as part of
an agreement with the government.[^141] Involvement by the government in
the inducement of guilty pleas by defendants who protest their innocence
may create the appearance of prosecutorial overreaching.[^142]

The Comment further states that it is preferable to have a jury resolve
the factual and legal dispute between the government and the defendant,
rather than have government attorneys encourage defendants to plead
guilty under circumstances that the public might regard as questionable
or unfair.[^143]

While there may be some uneasiness in handling an *Alford-*type guilty
plea, before rejecting its use its potential advantages and
disadvantages should be examined.

**V. ADVANTAGES AND DISADVANTAGES OF AN**

***ALFORD-*TYPE GUILTY PLEA**

### A. Potential Advantages of an *Alford*-Type Guilty Plea

Most attorneys accept plea bargaining as proper and "good," providing
advantages to both the defendant and the prosecutor. The value of plea
bargaining was acknowledged by the Supreme Court in *Santobello v. New
York,*[^144] wherein the Court stated: "The disposition of criminal
charges by agreement between the prosecutor and the accused, sometimes
loosely called 'plea bargaining', is an essential component of the
administration of justice. Properly administered, it is to be
encouraged." [^145]

Plea bargaining is an efficient means of disposing of criminal cases. It
provides the government a sure conviction, and the accused a sentence
ceiling. Permitting the use of an *Alford* plea expands the options
available when negotiating such agreements.

The options currently available in military plea bargaining are more
limited. The common practice in military plea bargaining permits the
accused to plead guilty either to a lesser included offense, or to less
than all charges and specifications. With a pretrial agreement in hand,
the government may choose to forego expending the time and effort
necessary to prove the greater offense (or the remaining charges and
specifications). The government may also choose, unless specifically
bargained away in the pretrial agreement, to prove the greater offense
(or the remaining charge(s) and specification(s)).

When choosing that option the government must prove beyond a reasonable
doubt that the accused is guilty of the greater offense or additional
charges.[^146] Contrast that with *Alford* where the government carries
a lower burden (i.e., strong evidence of guilt or simply a factual
basis). In fact, it may have been the potential inability of the
government to meet its burden of proof that led to a pretrial agreement
which permits the accused to plead not guilty to certain charges.[^147]

During pretrial agreement negotiations defense counsel often indicate to
the government that the accused cannot plead to the offenses as charged
because he is not "provident" to one or more of the charges or
specifications. Pursuant to *Care*[^148] and R.C.M. 910 the military
judge cannot accept a guilty plea if the accused raises matters
inconsistent with the plea or refuses to admit criminal culpability to
each element of each offense. The government must then choose between
permitting the accused to plead to lesser included offenses and/or less
than all the charges, or proving its case. The adoption of *Alford-*type
guilty pleas makes another option available.

If the government desires conviction of all charged offenses, or insists
on a plea of guilty to certain "major" offenses, the accused's inability
to be "provident" would no longer be a barrier to conviction. Assuming
that an accused desires the benefits gained from such a plea, the
accused could enter an *Alford*-type plea thereby eliminating the need
for a providency inquiry concerning those charges.

This option becomes especially important in sex offense crimes such as
rape or carnal knowledge.[^149] An accused who has committed rape will
often seek to enter a "traditional" guilty plea to indecent assault, a
lesser included offense of rape,[^150] or if the victim is a minor,
indecent acts (or liberties) with a minor.[^151] Persons guilty of such
offenses are often extremely reluctant to admit committing such
offenses. This is partly based on the disdain society has placed on
these crimes and those who commit them.

On the other hand, while an accused may be reluctant to admit guilt to
the charged offense, he may be willing to enter an *Alford* plea to the
charge of rape in order to lessen the potential maximum punishment
faced.

To illustrate, the government might be willing to enter a pretrial
agreement for 15 years only if the accused enters an *Alford* plea to
rape.[^152] The maximum punishment for rape is death or such other
punishment as a court-martial may direct.[^153] The maximum punishments
for two of the potential lesser included offenses of rape are: (1)
indecent assault-dishonorable discharge, total forfeiture of all pay and
allowances, and confinement for 5 years;[^154] and (2) indecent acts or
liberties with a child-dishonorable discharge, total forfeiture of all
pay and allowances, and confinement for 7 years.[^155] The government
may be unwilling to accept a plea to a lesser included offense based on
the facts and the significantly reduced maximum punishments. On the
other hand, the government may assess the strength of its case and
determine the charge of rape, while appropriate, presents difficulties
in proof. In such a case, an *Alford* plea would serve the interests of
justice well. Once the *Alford* plea is entered, the government's burden
of proof as to the rape is lowered to simply showing a sufficient
factual basis of the accused's guilt, making the task of convicting the
accused for this charge much easier; and the accused receives a
limitation on his sentence while maintaining his innocence. Further,
although the accused's sentence is limited, the government has the
potential to gain greater confinement than was available under the
lesser included offenses (15 years versus 5 or 7 years). Moreover, the
government now stands a greater chance of obtaining punishment equal to
or greater than the 15-year deal with a conviction of rape versus one
for indecent assault or indecent acts.[^156]

Additionally, if the government convicts the accused of additional
offenses after an *Alford* plea, it may receive the same "aggravation
effect" on sentencing as if the accused had fully contested the
charge(s). From a theoretical standpoint, the final outcome is no
different: The accused said he didn't do it, but the fact-finder has
found that he did. The government may have actually gained additional
ammunition for aggravation because arguably the accused has not accepted
responsibility for his criminal acts.[^157]

The *Alford* plea can also be attractive to the accused and his defense
attorney. Military defense counsel often encounter clients who, in the
face of overwhelming evidence of guilt, continue to maintain their
innocence. This places the defense counsel between the proverbial "rock
and a hard place." Defense counsel cannot ethically "force" their
clients to plead guilty to a crime they say they didn't commit, yet it
appears to be in their clients' best interest to avoid contesting a sure
loser.

Assuming there is no lesser included offense(s) to which the client is
willing to admit guilt, the present UCMJ pleas of "guilty" or "not
guilty"[^158] trap the accused and defense counsel into pleading "not
guilty." This sometimes forecloses the possibility of a pretrial
agreement and requires the client to risk receiving the maximum
punishments available to the court-martial.

It is certain that more than one innocent[^159] accused has "lied" to
the court during the providency inquiry in order to protect his pretrial
agreement. A policy that encourages untruthfulness tarnishes the
integrity of the system and undermines the very basis of the military
guilty plea.

The counter-argument is that that is exactly what an *Alford* plea does
in reverse: it permits a guilty accused to "lie" about his guilt to the
court, while receiving the benefit of a pretrial agreement. There is,
however, one important difference between these two scenarios.

Under the military's present providency inquiry rules the accused is
required, under oath, to admit guilt.[^160] The accused, if he believes
himself innocent, is therefore committing perjury if he or she "admits"
guilt.[^161] Some observers might feel this is of little consequence. If
an individual is willing to send himself or herself to jail for a crime
he didn't commit, no one is injured but the accused. This overlooks the
"perjury"--which decreases confidence in our system of military
justice.[^162]

On the other hand, with the adoption of an *Alford*-type plea the
accused is saying "I'm innocent but I knowingly and voluntarily want to
plead guilty anyway because it is in my best interest." There is no need
for a providency inquiry which requires the accused, under oath, to
"prove" his guilt. Rather, the government is required, independent of
the accused's statements, to establish the factual basis of guilt. The
guilty accused is not committing perjury while proclaiming
innocence,[^163] and the burden is placed back upon the government to
produce sufficient evidence of the accused's guilt.

The accused may maintain his innocence while receiving the protection of
a pretrial agreement. This alternative should greatly improve the
relationship between the client and defense attorney. Once the accused
is aware of the *Alford* option, he should have no reason to lie to his
attorney (or the military judge) concerning his guilt in order to avail
himself of an advantageous pretrial agreement.

While there are many attractive advantages to adopting the *Alford*
plea, there are likewise several disadvantages that deserve discussion.

### B. Potential Disadvantages of an *Alford*-Type Guilty Plea

Among the potential disadvantages to adopting the *Alford* plea are: (1)
the erosion of a basic premise of American justice that only guilty
persons are convicted; (2) potential loss of confidence in the military
criminal justice system; (3) fear that the plea will be overused; (4)
the danger of repeated collateral attacks once the plea is accepted; and
(5) the possible harm such pleas may have to accuseds and victims alike.

*1. Ensuring Only Guilty Accused Are Convicted*.

Probably the most troubling aspect of an *Alford* plea is the potential
to undermine what is arguably the most fundamental underpinning of our
criminal justice system: that only the truly guilty are convicted and
punished. The United States, in fashioning its criminal justice system,
has taken great pains to reduce the risk of convicting an innocent
defendant.[^164]

Before *Alford* there were three methods used to determine guilt: (1)
admission of guilt by the accused; (2) a plea of *nolo contendere;* or
(3) conviction after a contested trial on the merits. Because the
conviction of an innocent person is to be avoided, the adoption of a
process that not only permits, but potentially encourages innocent
people to plead guilty, deserves careful examination.[^165] One might
argue the plea of *nolo contendere* has permitted this for hundreds of
years. However, with a *nolo* plea an accused is not really pleading
guilty or not guilty, he is refusing to contest his guilt. With an
*Alford* plea. the accused is *affirmatively* asserting his innocence.

*2. Loss of Confidence in Military Justice System*.

A second pitfall of the *Alford* plea is the potential loss of
confidence in our military justice system. It can be problematic for the
government to explain to the public how a soldier professing his
innocence can be convicted and sentenced pursuant to a guilty plea. The
following passage from *United States v. Bednarski*[^166] is
illustrative of this concern:

> We see at least two reasons why the \[trial\] court must have
> discretion whether or not to accept a plea even though a strong case
> may be made as to its voluntariness. The first is that a conviction
> affects more than the court and the defendant; the public is involved.
> However legally sound the *Alford* principle, which we of course do
> not dispute, the public might well not understand or accept the fact
> that a defendant who denied his guilt was nonetheless placed in a
> position of pleading guilty and going to jail . . . .[^167]

This concern may be ill-founded. We routinely convict and sentence
members of the armed forces (after a contested trial) who continue to
profess their innocence. Also, one must not forget that an *Alford* plea
is *not* an absolute right. As previously discussed, the Supreme Court
vested trial courts with great discretion to determine the
appropriateness of accepting any guilty plea based on the accused's
waiver of rights *and* the government's evidence sufficiently showing
guilt. If the military judge has valid concerns about the accused's true
guilt, an *Alford* plea should not be accepted. It is hard to imagine an
appeals court would find that a judge abused his discretion by rejecting
an *Alford* plea offer based on a finding that there was *insufficient
evidence* of the accused's guilt.

Furthermore, one should not forget that the *Alford* plea is a
negotiated plea. The government must agree to the terms of any pretrial
agreement, including the type of plea to be entered by the accused. The
accused does not have an independent right to an *Alford* plea coupled
with a pretrial agreement (or any other combination of guilty plea and
pretrial agreement).[^168]

*3. Fear that the Plea will be Overused*.

An accused in the military receives little benefit from an *Alford-*type
guilty plea if there is no corresponding pretrial agreement. An accused
who pleads guilty without the benefit of a pretrial agreement will
normally receive credit from the court during sentencing for accepting
responsibility and saving the government the time and expense of a
contested trial. An *Alford-*type guilty plea arguably does not
accomplish either of these goals.

The absence of a sentence cap would likely dissuade the accused from
entering an *Alford*-type plea. Thus, in cases where no pretrial
agreement has been reached, accuseds are not likely to seek
*Alford*-type pleas. Further, the government in this type of case would
gain little from agreeing to this approach. The accused is not accepting
responsibility for his criminal acts, and the government, because there
is no stipulation of fact, is put to at least the minimal time and
expense of presenting a factual basis of the accused's guilt. Finally,
since the Alford plea is negotiated, it can't be unilaterally overruled
by the defense.

*4. The Fear of Collateral Attack*.

There are always at least two potential avenues of attack upon an
*Alford* plea: the voluntariness of the plea, or the adequacy of the
evidence as to guilt. The concern over post-trial attacks is lessened by
the broad discretion given to the trial court in accepting *Alford*
pleas. A successful appeal of an *Alford* plea based solely upon the
acceptance by the trial court of the plea is unlikely. This is
especially true if Rule 11(f) has been properly followed.[^169]

*5. Harm to Victims and Accused*.

Another area of concern is the impact *Alford*-type guilty pleas may
have on victims. At least one author argues that permitting a defendant
to enter an *Alford* plea robs the victim of the ability to place the
criminal experience behind them. In his article, *The Retributive Theory
of "Just Deserts" and Victim Participation in Plea Bargaining,*[^170]
David Starkweather argues that only a plea process that emphasizes
offender responsibility enables a victim to accept what happened and
reach a point of "forgiveness."[^171] In his opinion, an *Alford* plea
is a "green light" to criminals to ignore "guilt" whenever it is
expedient to do so.[^172] The wrongdoer's refusal to admit guilt stymies
victims' ability to "get on with their life."

Additionally, permitting a defendant to make his way through the
criminal justice system without admitting responsibility for his actions
increases a victim's sense of alienation. It also fails to satisfy an
important historical foundation of punishment, that of retribution. In
Starkweather's view the ultimate goal of retribution is "to permit the
criminal to atone for his crime and then be reconciled to
society."[^173] In his opinion, an offender permitted to escape
recognition of guilt will never reach the point of "atonement" and,
therefore, the resulting goal of retribution is never achieved.

These arguments are not persuasive. Undoubtedly, victims of crime desire
that the perpetrator be convicted and punished for his crime(s).
However, the distinction to a victim between a traditional guilty plea
and an *Alford* plea is arguably insignificant. The primary concern of
most victims is the conviction (and appropriate punishment) of the
perpetrator. The means used to reach these goals are less important
after all. Victims are satisfied with results when the accused denies
guilt, yet is found guilty after a litigated trial and subsequently
punished. To argue that retribution can *only* be exacted by a
confession of guilt misses the mark. It is the conviction and the
resulting punishment which serve, at least partly, the retributive
purpose. To argue otherwise would mean victims are satisfied with an
admission of guilt but no consequences to the admission.

The military is presently required to include victims in the plea
bargaining process.[^174] This would ensure a victim's concerns over a
possible *Alford* plea are properly addressed. A wise trial counsel will
rarely disregard a victim's wishes in this area. This is especially true
if the government has a strong case and there is little risk of
acquittal.[^175]

The next section assumes that the *Alford* plea has been adopted for use
in the military. As discussed in the introduction to this paper, there
are several issues which deserve analysis (and resolution) since
adoption by the military of an *Alford* plea will require several
changes to our present guilty plea practice.

**VI. ISSUES IF AN *ALFORD-*TYPE**

**GUILTY PLEA IS ADOPTED**

Issues generated by the military's adoption of an *Alford*-type plea
include: (1) what preliminary inquiry, if any, should be conducted by
the military judge prior to accepting the plea?; (2) what standard of
proof should be required to establish the factual basis of the plea?;
(3) how useful will stipulations be in meeting this standard of proof?;
(4) to what extent (during sentencing) an *Alford*-type plea should be
considered as aggravation or mitigation; and (5) what jury instructions,
if any, should be developed to properly instruct members concerning the
existence and effect of the accused's *Alford*-type guilty plea?

**A. The Guilty Plea Inquiry***.*

Adoption by the military of the *Alford* plea would require several
changes to our present guilty plea practice. As discussed in Section IV,
the Manual for Courts-Martial sets forth several requirements before the
military judge may accept a guilty plea. Underlying these requirements
is the desire to ensure that the accused's plea is knowing, voluntary
and factually-based. To accomplish this end the military judge must
(among other requirements) ensure the accused understands:

\(1\) the legal effect of his plea;[^176]

\(2\) the rights he foregoes when entering a plea of guilty;[^177]

> \(3\) the minimum mandatory (if any) and maximum punishment authorized
> by law in the case;[^178] and
>
> \(4\) if made pursuant to a pretrial agreement, the meaning and effect
> of the agreement.[^179]

If the *Alford* plea is adopted, several aspects of the guilty plea
inquiry will require revision. Perhaps the most significant change is
that the military judge must determine that a factual basis exists for
the plea from sources other than the accused.[^180] This will require
R.C.M. 910 to be revised.

As we have seen, a major part of the guilty plea inquiry consists of the
providency inquiry pursuant to R.C.M. 910. During this stage of the
court-martial the accused is placed under oath and questioned by the
military judge. The accused is required, by his answers, to establish
the factual basis of his guilty plea.[^181] Because the accused in an
*Alford* plea is refusing to admit guilt, this inquiry will no longer be
required (just as it is omitted in federal courts when accepting a plea
of *nolo contendere*). Therefore, R.C.M.s 910(c)(5) and 910(e) should be
amended to exclude the requirement that the accused be questioned under
oath concerning the factual basis of charges to which an *Alford* plea
is being entered.

The basis of the accused's guilt will then be proven by introduction by
the government of proof sufficient to meet the factual basis threshold
required by the Supreme Court and R.C.M. 910(e) (which is consistent
with Rule 11(f))[^182] Such evidence could consist of one or more of the
following: (1) stipulations of fact; (2) stipulations of expected
testimony; (3) live witnesses; or (4) documentary or physical evidence.

In federal courts the factual basis may be established by stipulation,
an offer of proof by the government, the presentence report,[^183] or
the accused's confession. As the court in *United States v.*
*Sweet*[^184] observed, "because the accused servicemember may not plead
*nolo contendere* or plead guilty while proclaiming innocence, these
alternative methods of establishing a factual basis for guilty pleas
have not been adopted for military practice."[^185]

The adoption of additional methods of proof must also be considered if
an *Alford*-type guilty plea is established in the military justice
system. While we have no equivalent to the presentence report, the
ability of the government to make an offer of proof would be especially
helpful to trial counsel, as would the introduction of an accused's
pretrial statements without having to meet the formality of proof now
required.[^186]

### B. The Use of Stipulations

Stipulations of fact are written documents, signed by the trial counsel,
defense counsel, and the accused, setting forth the undisputed facts
surrounding the offenses. The courts encourage the use of
stipulations.[^187] The requirement of a stipulation of fact in
connection with a negotiated guilty plea is virtually automatic.[^188]
This is the simplest use of a stipulation of fact. The accused, in
return for a sentence cap, agrees that the facts necessary to prove each
element of each charged offense are true. Additionally, stipulations of
fact often remove the necessity for the government to call witnesses
during sentencing.

If the accused has only pleaded guilty to lesser-included offenses, the
stipulation may ease the government's burden in proving the greater
offense(s). In this type of case the accused agrees to some (but not
all) of the facts necessary to prove each element of each charged
offense. The government therefore relies on the guilty plea inquiry and
the stipulation to obtain conviction on the lesser-included offense(s),
and as a basis for going forward on the greater offense(s).[^189]

The government, as part of a pretrial agreement, can also require the
accused to enter into what is called a confessional stipulation of fact.
Such stipulations of fact are authorized by R.C.M. 705(c)(2)(A).[^190]
The court of Military Appeals first recognized confessional stipulations
in the case of *United States v. Bertelson*.[^191] Bertelson was
convicted of distributing methamphetamine after a plea of not guilty and
the introduction of a confessional stipulation. Bertelson had originally
attempted to plead guilty, but the military judge rejected his plea as
being improvident[^192] based on Bertelson's claim that he lacked
predisposition to commit the crime.[^193] In order to maintain the
sentence limitation contained in the pretrial agreement, Bertelson
agreed to every fact needed to prove his guilt in a stipulation of fact.

In *Bertelson* the Court of Military Appeals defined a confessional
stipulation as a "stipulation which practically amounts to a
confession."[^194] While confirming the accused must first knowingly,
intelligently, and voluntarily consent to admission of the
stipulation,[^195] the court also noted that once the accused knowingly
consents to the admission of any objectionable evidence, it is
irretrievable.[^196]

Although the *Bertelson* court affirmed the validity of "confessional
stipulations"[^197] it set forth two requirements for their use: the
accused must knowingly, intelligently, and voluntarily consent to its
admission;[^198] and the military judge must ascertain from the accused,
on the record, that a factual basis exists for the stipulation.[^199]
The court therefore adopted the necessity of a *Care*-like
inquiry.[^200] If this inquiry produces inconsistencies the military
judge must reject the stipulation.[^201] The military judge may also, in
the interest of justice, decline to accept a stipulation.[^202]

Rule for Courts-Martial 811 sets forth the general rules for the
acceptance of any stipulation (whether pertaining to a fact, a document,
or expected testimony). As a first step, the judge must ensure that the
parties consent to its admission.[^203] The Discussion to R.C.M. 811(c)
capsulizes the *Bertelson* court's holdings.[^204] If the stipulation
practically amounts to a confession to which a not guilty plea is
outstanding,[^205] it may not be accepted unless the military judge
ascertains from the accused:

> \(1\) That the accused understands the right not to stipulate and that
> the stipulation will not be accepted without the accused's consent;
>
> \(2\) That the accused understands the contents and effect of the
> stipulation;
>
> \(3\) That a factual basis exists for the stipulation; and
>
> \(4\) That the accused, after consulting with counsel, consents to the
> stipulation.

The court must also ascertain from the accused and counsel for each
party whether there are any agreements between the parties in connection
with the stipulation. If there is an agreement, the judge must determine
its terms.[^206] As previously discussed, the government often uses
stipulations of fact in "proving up" one or more of the charges to be
litigated. An accused who is unwilling to accept guilt on certain
offenses may readily admit to certain inculpating facts concerning these
offenses in return for the protection afforded by a pretrial agreement.
Once protected by the pretrial agreement the accused no longer fears the
consequences of conviction on the additional charges.[^207] Such an
arrangement may also be attractive to the government.[^208]

This method of using stipulations would presumably be employed on a
regular basis with *Alford*-type guilty pleas.[^209] The accused would
maintain his innocence, accept the benefits of a negotiated pretrial
agreement, and provide, in part, the ammunition necessary for the
government to prove the factual basis of the desired charge(s).

A second type of stipulation, a stipulation of expected testimony, also
deserves brief discussion. A stipulation of expected testimony, as it's
name denotes, is a stipulation between the parties that a witness, if
called, would testify as to certain matters.[^210] Such stipulations are
recognized in the military.[^211] Importantly, an accused who permits a
stipulation of expected testimony to be used is not necessarily agreeing
to the *truthfulness* of such testimony.[^212] In spite of this
limitation the government, in conjunction with an *Alford*-type plea,
can make good use of such evidence in order to meet its burden of proof
as to guilt, and/or in support of the government's sentencing case.

We have previously discussed the potential usefulness of the *Alford*
plea in some of the most difficult cases faced by the government and
accuseds: child sex abuse prosecutions. It is these cases which present
the most challenging problems of proof, not to mention the reluctance of
accuseds to accept responsibility by pleading guilty.[^213]

A sex offender unable or unwilling to admit culpability in the face of
possible conviction (and substantial confinement) could now maintain his
innocence while protecting himself by negotiating a pretrial agreement.
The government obtains a sure conviction without requiring the child
victim to testify on the merits, or possibly at all.[^214] By requiring
the accused, as part of the pretrial agreement, to stipulate to as many
inculpating facts as possible (short of a "full" confessional
stipulation) the government has saved time, effort and expense. The
government could then supplement the stipulation with additional
evidence, as needed, to satisfy the factual basis requirement of R.C.M.
910(e).[^215]

This result is positive for all concerned. The government obtains what
could have been a difficult conviction with relative ease. The child
victim is spared the ordeal of having to face the abuser and the
resulting trauma so often connected with a fully contested trial. The
accused maintains his innocence while protecting himself from the
potentially devastating results of conviction after a contest. The
sentencing advantages gained by the government, as previously discussed,
are twofold: (1) the potential for negotiating a "higher" confinement
ceiling; and (2) a better chance of reaching the sentence ceiling agreed
upon by the accused.[^216]

### C. The Standard of Proof

As discussed in Section II, it is possible that many lower courts have
relied on the requirements of Rule 11(f) because they are familiar with
its standard, and realize prosecutors required to meet a beyond a
reasonable doubt burden would likely be reluctant to accept *Alford*
pleas. The standard should not be proof beyond a reasonable doubt. The
Supreme Court does not require it, and more importantly, the main
attraction to the government of an *Alford* plea is the lessened burden
of proof. This becomes important for the government because of the
relative ease in proving the charges; the potential savings of time and
effort; and the elimination of "live" testimony.

Should an *Alford*-type guilty plea be adopted by the military, the
present quantum of proof required to meet the factual basis of R.C.M.
910(e) should be sufficient to firmly establish the accused's guilt.
R.C.M. 910(e) states: "The military judge shall not accept a plea of
guilty without making such inquiry of the accused as shall satisfy the
military judge that there is a factual basis for the plea." With
adoption of an *Alford*-type plea the government should only be required
to provide a factual basis sufficient to satisfy the military judge.
Besides being constitutionally adequate, the present standard is one
with which military judges and military appellate courts are already
competent in evaluating. The potential gain from a higher burden of
proof would be the possible prevention of convicting the truly innocent
accused. This protection does not outweigh the advantages offered by our
present standard.

**D. The Extent of Mitigation to be Afforded**

**an *Alford*-Type Guilty Plea**

The mitigation normally associated with a guilty plea is divided between
credit for acceptance of responsibility and the guilty plea's
contribution to judicial economy. The acceptance of responsibility for
one's crime(s) is seen as an indicator of one's potential for
rehabilitation. In the military, rehabilitative potential is defined as
"the accused's potential to be restored, through vocational,
correctional, or therapeutic training or other corrective measures to a
useful and constructive place in society."[^217]

Court members are presently instructed that a guilty plea "may be the
first step towards rehabilitation."[^218] Should an accused who enters
an *Alford*-type guilty plea be entitled to receive such an instruction?
It is helpful to examine, by analogy, how federal courts, under the
Federal Sentencing Guidelines (hereinafter Guidelines),[^219] have
answered this question.

These Guidelines assign various point totals for particular crimes and
employ an elaborate system of adding and subtracting points based on the
circumstances surrounding the crime and the particular characteristics
of the defendant. The final point total determines the sentencing range
available to the court.[^220]

Section 3E1.1 of the Guidelines, entitled "Acceptance of
Responsibility," provides:

> \(a\) If the defendant clearly demonstrates a recognition and
> affirmative acceptance of responsibility for his criminal conduct,
> reduce the offense level by 2 levels.
>
> \(b\) A defendant may be given consideration under this section
> without regard to whether his conviction is based upon a guilty plea
> or a finding of guilty by the court or jury or the practical certainty
> of conviction at trial.
>
> \(c\) A defendant who enters a guilty plea is not entitled to a
> sentencing reduction under this section as a matter of right.[^221]

The following principles, therefore, govern acceptance of responsibility
under federal practice: the defendant bears the burden of "proving" to
the court he has accepted responsibility for his criminal conduct; the
basis of the conviction is irrelevant to this determination; and the
entry of a guilty plea does not automatically entitle the defendant to
this "credit."

The Sixth Circuit, in *United States v. Tucker**,*[^222] held that entry
of an *Alford* plea does not, *per se*, preclude a sentence reduction
for acceptance of responsibility.[^223] The court analyzed this issue as
follows:

> At first glance, it may be perfectly logical that a defendant's
> pleading guilty while maintaining his innocence does not amount to
> accepting responsibility. A closer look at the Guideline, however,
> indicates that an *Alford* plea does not bar such a reduction. First,
> the language of the Guideline states that a court may not consider
> that a guilty plea is based on "the practical certainty of conviction
> at trial." This language recognizes the problem addressed by *Alford*
> pleas and arguably allows a reduction despite such pleas. Second, the
> factors to be considered by the court in considering requests for an
> acceptance of responsibility reduction are not inconsistent with
> *Alford* pleas. For example, a defendant, while pleading guilty and
> maintaining his innocence may still voluntarily resign from the office
> or position held during the commission of the offense, Application
> Note 1(f), or voluntarily assist the authorities in recovering the
> fruits and instrumentalities of the offense, Application Note
> 1(e).[^224]

While not holding an *Alford* plea to be an automatic disqualifier from
receiving acceptance of responsibility credit, several courts, contrary
to the Sixth Circuit's decision in *Tucker*, have considered the entry
of an *Alford* plea in a negative light when determining acceptance of
responsibility.[^225]

A defendant's refusal to acknowledge essential elements of an offense is
inconsistent with the commentary to the guidelines. The commentary
states that truthful admission of the criminal conduct is relevant to
determine if the defendant should receive this reduction (referring to
acceptance of responsibility).[^226] If an unqualified guilty plea can
serve as evidence of a defendant's acceptance of responsibility,[^227]
then logically the qualifications a defendant states in his guilty plea
can serve as evidence that he has not fully recognized and accepted
personal responsibility for the crime.[^228]

In *United States v. Harlan*,[^229] the trial judge stated: "Moreover,
the court should point out that the defendant's *nolo* plea (mistakenly
referring to the defendant's *Alford* plea) is not, in the court's mind,
an acknowledgment of guilt nor can it be taken as an acceptance of
responsibility as argued by counsel."[^230]

Under this approach, an accused is not losing the right nor opportunity
to introduce other types of mitigation evidence such as cooperation with
the authorities, assistance in recovering stolen property, etc. What the
accused forfeits is the positive inference that a "traditional" guilty
plea carries. An accused should not receive even the inference, based on
his *Alford*-type guilty plea, that he has taken the "first step towards
rehabilitation." Therefore, the above instruction should be omitted when
an *Alford* plea is entered by the accused. The accused is, however,
entitled to receive some mitigation for his *Alford* guilty plea.

By entering an *Alford* plea the accused saves the government time,
effort, and expense. This is true even though the government may be
forced to expend some effort above that normally associated with
"traditional" guilty pleas. The amount of effort required by the
government in any particular case depends on several factors. Among
these are the complexities of the charges, the detail and scope of the
stipulation of fact, and the difficulty and expense of obtaining
additional evidence (if required). A closely related issue is the need,
if any, for jury instructions to be given prior to the accused taking
the stand during sentencing after he has entered an *Alford*-type guilty
plea.

### E. Jury Instructions

A modified instruction should be given concerning the entry by an
accused of an *Alford*-type guilty plea. The present instruction reads
as follows: "Time, effort and expense to the government (have been)
(usually are) saved by a plea of guilty."[^231] The following is a
suggested instruction:

> The accused in this case has freely and voluntarily entered what is
> referred to as an *Alford*-type plea. This plea permits the accused to
> maintain his innocence while at the same time agreeing to plead guilty
> and thereby waive his right to a trial as to his guilt or innocence.
> The accused has determined it is in his best interests to enter such a
> plea. An *Alford*-type guilty plea is a matter of mitigation which
> must be considered along with all other facts and circumstances of the
> case. Although not admitting culpability, time, effort, and expense to
> the government (usually are) (have been) saved by the accused's plea
> of guilty.[^232]

The use of the *Alford* plea does present one additional issue in this
area:

The type of mitigation credit, and therefore instruction, which should
be given if the accused enters a "split" guilty plea, i.e., an
*Alford-*type guilty plea as to some charges or specifications and a
"traditional" guilty plea as to others.

Under these circumstances the accused deserves "full" mitigation credit.
The military judge should therefore use the present language of the
above instruction, including the phrase that the accused's plea "may be
the first step towards rehabilitation." Although an accused facing many
charges could misuse this inference by only admitting culpability to the
least serious offense, accused servicemembers should receive the benefit
of the doubt with respect to the instruction. Of course, the amount of
mitigation offered by the court is discretionary.[^233]

**VII. LEGISLATIVE CHANGES REQUIRED IF**

***ALFORD*-TYPE PLEA ADOPTED**

Adoption of an *Alford*-type plea by the military would require a
statutory change to Article 45, UCMJ, as well as amendments to R.C.M.
910. Article 45 presently requires a guilty plea to be rejected if the
court becomes aware of any matter inconsistent with the plea.[^234] A
suggested amendment to Article 45 is found in the Appendix to this
article.

Consistent with a change to Article 45, R.C.M. 910 and its comments
would likewise require amendment.[^235] Changes to R.C.M. 910 could be
accomplished by Executive Order since Congress has delegated to the
President the authority to prescribe regulations respecting pretrial and
post-trial procedure. These regulations may not conflict with the Code
but must, so far as practical, apply principles of law and rules of
evidence generally recognized in criminal tribunals in federal district
courts.[^236] Suggested amendments to R.C.M. 910 and its comments are
also found in the Appendix.

**VIII. CONCLUSION**

The military should adopt the *Alford*-type guilty plea as its benefits
far outweigh its disadvantages. Accuseds who enter *Alford* pleas really
fall into two categories: (1) those who are guilty but refuse for
personal or tactical reasons to admit guilt; and (2) those who are
innocent but fear the possibility of being wrongly convicted and thereby
facing the potential of receiving the maximum punishment available to
the court.

We need not be concerned with the first group of accuseds. Conviction of
a guilty person pursuant to an *Alford*-type plea is a proper result.
The real focus should be on the possibility, or even likelihood, that
innocent accuseds will find it advantageous to enter *Alford*-type pleas
of guilt, thereby bringing upon themselves a "wrongful" conviction.
Should we refuse to offer them, and by necessity all other accuseds, the
option of an *Alford*-type plea? The author believes not.

The overwhelming majority of accuseds brought before courts-martial
today are guilty even though their guilt may be to a lesser included
offense encompassed within the charged offense(s). Therefore, the number
of accused who are now entering "traditional" guilty pleas, then lying
during the providency inquiry in order to protect themselves from
potentially severe punishments, is extremely small.

This conclusion is based on the following: (1) trust and faith in the
integrity of the military investigative community; (2) our ability as
judge advocates to "screen out" cases when evidence is weak; and (3)
perhaps, most importantly, the providence inquiry which an accused must
undergo pursuant to *Care.* While not a widespread problem, adoption of
the *Alford*-type plea should totally eliminate the need for an innocent
person to lie to the court.[^237] The chances of a truly innocent person
being convicted would further be screened by the requirement that the
government establish an adequate factual basis for the plea. The
government must satisfy the military judge that the accused, contrary to
his protestations of innocence, is in fact guilty.

In fairness to an accused, if, after consultation with his defense
counsel, he knowingly and intelligently determines that his best
interest is served by an *Alford*-type guilty plea, he should be free to
choose this path. The system should not force him to lie under oath, nor
to go to trial with no promise of the ultimate outcome concerning guilt
or punishment. We must trust the accused to make such an important
decision for himself. The military provides an accused facing
court-martial with a qualified defense attorney. Together, they are in
the best position to properly weigh the impact his decision, and the
resulting conviction, will have upon himself and his family.

The concern over the public's perception of *Alford* pleas, while
arguably valid, should not prevent the adoption of this type of plea for
the military. Trial counsel should take full advantage of the
opportunity afforded by our present military practice, as well as any
additional methods of proof instituted as part of the adoption of the
*Alford*-type plea, to thwart the accused's efforts to project a public
image of innocence. To minimize the adverse effects of *Alford*-type
pleas on the public's perception of the administration of justice within
the military, trial counsel should establish as strong a factual basis
as possible for every *Alford-*type guilty plea.[^238]

APPENDIX

The changes recommended to the Uniform Code of Military Justice, and the
Manual for Courts-Martial, are set forth below. Changes are denoted by
italics.

#### I. ARTICLE 45, UCMJ

\(a\) No change. If an accused after arraignment makes an irregular
pleading, or after a plea of guilty sets up matter inconsistent with the
plea, or if it appears that he has entered the plea of guilty
improvidently or through lack of understanding of its meaning and
effect, or if he fails or refuses to plead, a plea of not guilty shall
be entered in the record, and the court shall proceed as though he had
pleaded not guilty.

\(b\) No change. A plea of guilty by the accused may not be received to
any charge or specification alleging an offense for which the death
penalty may be adjudged. With respect to any other charge or
specification to which a plea of guilty has been made by the accused and
accepted by the military judge or by a court-martial without a military
judge, a finding of guilty of the charge or specification may, if
permitted by regulations of the Secretary concerned, be entered
immediately without vote. This finding shall constitute the finding of
the court unless the plea of guilty is withdrawn prior to announcement
of the sentence, in which event the proceedings shall continue as though
the accused had pleaded not guilty.

\(c\) *Notwithstanding the provisions of subparagraph (a), nothing in
this Article prevents an accused from entering the type of plea
authorized by the United States Supreme Court in North Carolina v.
Alford, 400 U.S. 25 (1970), commonly known as an Alford plea.*

### II. RULE 910. PLEAS

\(a\) Alternatives.

\(1\) In general. An accused may plead as follows: guilty; not guilty to
an offense as charged, but guilty of a named lesser included offense;
guilty with exceptions, with or without substitutions, not guilty of the
exceptions, but guilty of the substitutions, if any; or not guilty. *The
accused may enter an Alford-type guilty plea to any of the above guilty
plea options.* A plea of guilty may not be received as to an offense for
which the death penalty may be adjudged by the court-martial.

##### Discussion

See paragraph 2, Part IV, concerning lesser included offenses. When the
plea is to a named lesser included offense without the use of exceptions
and substitutions, the defense counsel should provide a written revised
specification accurately reflecting the plea and request that the
revised specification be included in the record as an appellate exhibit.
A plea of guilty to a lesser included offense does not bar the
prosecution from proceeding on the offense as charged. See also
subsection (g) of this rule. *Pleas pursuant to North Carolina v. Alford
are now authorized in the military. See 400 U.S. 25 (1970).*

A plea of guilty does not prevent the introduction of evidence, either
in support of the factual basis for the plea, or, after findings are
entered, in aggravation. See R.C.M. 1001(b)(4).

\(2\) Conditional pleas (No change). With the approval of the military
judge and the consent of the Government, an accused may enter a
conditional plea of guilty, reserving the right, on further review or
appeal, to review of the adverse determination of any specified pretrial
motion. If the accused prevails on further review or appeal, the accused
shall be allowed to withdraw the plea of guilty. The Secretary concerned
may prescribe who may consent for Government; unless otherwise
prescribed by the Secretary concerned, the trial counsel may consent on
behalf of the Government.

\(b\) Refusal to plead; irregular plea (No change). If an accused fails
or refuses to plead, or makes an irregular plea, the military judge
shall enter a plea of not guilty for the accused.

### Discussion

An irregular plea includes pleas such as guilty \[without criminality
or\][^239] guilty to a charge but not guilty to all specifications
thereunder. When a plea is ambiguous, the military judge should have it
clarified before proceeding further. *An Alford-type plea is not
considered an irregular plea.*

\(c\) Advice to accused (No change). Before accepting a plea of guilty,
the military judge shall address the accused personally and inform the
accused of, and determine that the accused understands, the following:

\(1\) (No change). The nature of the offense to which the plea is
offered, the mandatory minimum penalty, if any, provided by law, and the
maximum possible penalty provided by law.

### Discussion

The elements of each offense to which the accused has pleaded guilty
should be described to the accused. See also subsection (e) of this
rule.

\(2\) (No change). In a general or special court-martial, if the accused
is not represented by counsel, that the accused has the right to be
represented by counsel at every stage of the proceedings.

### Discussion

In a general or special court-martial, if the accused is not represented
by counsel, a plea of guilty should not be accepted.

\(3\) (No change). That the accused has the right to plead not guilty or
to persist in that plea if already made, and that the accused has the
right to be tried by a court-martial, and that at such trial the accused
has the right to confront and cross-examine witnesses against the
accused, and the right against self-incrimination;

\(4\) (No change). That if the accused pleads guilty, there will not be
a trial of any kind as to those offenses to which the accused has so
pleaded, so that by pleading guilty the accused waives the rights
described in subsection (c)(3) of this Rule; and

\(5\) *Inquiry of Accused*.

\(a\) New subparagraph (Present paragraph 5). That if the accused pleads
guilty, the military judge will question the accused about the offenses
to which the accused has pleaded guilty, and, if the accused answers
these questions under oath, on the record, and in the presence of
counsel, the accused\'s answers may later be used against the accused in
a prosecution for perjury or false statement.

\(b\) New subparagraph. *If the accused has entered an Alford-type plea
to one or more of the charges, the inquiry set forth in subparagraph (a)
will not be conducted as to those charges.*

### Discussion

The advice in subsection (5) is inapplicable in a court-martial in which
the accused is not represented by counsel. *An accused who enters an
Alford-type plea to one or more charges does not accept full and
complete responsibility concerning the charge(s). Therefore, it is
inappropriate for the military judge to question the accused concerning
these offenses.*

\(d\) Ensuring that the plea is voluntary (No change). Ensuring that the
plea is voluntary. The military judge shall not accept a plea of guilty
without first, by addressing the accused personally, determining that
the plea is voluntary and not the result of force or threats or of
promises apart from a plea agreement under R.C.M. 705. The military
judge shall also inquire whether the accused\'s willingness to plead
guilty results from prior discussions between the convening authority, a
representative of the convening authority, or trial counsel, and the
accused or defense counsel.

\(e\) Determining accuracy of plea.

\(1\) New subparagraph (Present paragraph e). Determining accuracy of
plea. The military judge shall not accept a plea of guilty without
making such inquiry of the accused as shall satisfy the military judge
that there is a factual basis for the plea. The accused shall be
questioned under oath about the offenses.

\(2\) New subparagraph. If the accused has entered an Alford-type guilty
plea to one or more of the charges, the inquiry set forth in
subparagraph (e)(1) will not be conducted as to those charges. The
Government shall have the burden of satisfying the military judge that
there is a factual basis for the plea.

### Discussion

### 

### (1) New subparagraph (Present Discussion). A plea of guilty must be in accord with the truth. Before the plea is accepted, the accused must admit every element of the offense(s) to which the accused pleaded guilty. Ordinarily, the elements should be explained to the accused. If any potential defense is raised by the accused\'s account of the offense or by other matter presented to the military judge, the military judge should explain such a defense to the accused and should not accept the plea unless the accused admits facts which negate the defense. If the statute of limitations would otherwise bar trial for the offense, the military judge should not accept a plea of guilty to it without an affirmative waiver by the accused. See R.C.M. 907(b)(2)(B). 

The accused need not describe from personal recollection all the
circumstances necessary to establish a factual basis for the plea.
Nevertheless the accused must be convinced of, and able to describe all
the facts necessary to establish guilt. For example, an accused may be
unable to recall certain events in an offense, but may still be able to
adequately describe the offense based on witness statements or similar
sources which the accused believes to be true. The accused should remain
at the counsel table during questioning by the military judge.

\(2\) New subparagraph. *An accused who enters an Alford-type plea to
one or more charges is denying guilt as to those charges. Therefore, it
is inappropriate for the military judge to question the accused
concerning these offenses. The government may meet its burden of proving
the factual basis by introducing the following: stipulations of fact,
stipulations of expected testimony, witness testimony, documentary
evidence, or physical evidence. These examples are not to be considered
the only methods potentially available to the government to establish
the factual basis of the plea.*

\(f\) Plea agreement inquiry (No change).

\(1\) In general. A plea agreement may not be accepted if it does not
comply with R.C.M. 705.

\(2\) Notice. The parties shall inform the military judge if a plea
agreement exists.

###### Discussion

The military judge should ask whether a plea agreement exists. See
subsection (d) of this rule. Even if the military judge fails to so
inquire or the accused answers incorrectly, counsel have an obligation
to bring any agreements or understandings in connection with the plea to
the attention of the military judge.

\(3\) Disclosure. If a plea agreement exists, the military judge shall
require disclosure of the entire agreement before the plea is accepted,
provided that in trial before military judge alone the military judge
ordinarily shall not examine any sentence limitation contained in the
agreement until after the sentence of the court-martial has been
announced.

\(4\) Inquiry. The military judge shall inquire to ensure:

\(A\) That the accused understands the agreement; and

\(B\) That the parties agree to the terms of the agreement.

### Discussion

If the plea agreement contains any unclear or ambiguous terms, the
military judge should obtain clarification from the parties. If there is
doubt about the accused\'s understanding of any terms in the agreement,
the military judge should explain those terms to the accused.

\(g\) Findings (No change). Findings based on a plea of guilty may be
entered immediately upon acceptance of the plea at an Article 39(a)
session unless:

(1) Such action is not permitted by regulations of the Secretary
    concerned;

(2) The plea is to a lesser included offense and the prosecution intends
    to proceed to trial on the offense as charged; or

\(3\) Trial is by a special court-martial without a military judge, in
which case the president of the court-martial may enter findings based
on the pleas without a formal vote except when subsection (g)(2) of this
rule applies.

### Discussion

If the accused has pleaded guilty to some offenses but not to others,
the military judge should ordinarily defer informing the members of the
offenses to which the accused has pleaded guilty until after findings on
the remaining offenses have been entered. See R.C.M. 913(a), Discussion
and R.C.M. 920(e), Discussion, paragraph 3.

\(h\) Later action.

\(1\) Withdrawal by the accused (No change). Withdrawal by the accused.
If after acceptance of the plea but before the sentence is announced the
accused requests to withdraw a plea of guilty and substitute a plea of
not guilty or a plea of guilty to a lesser included offense, the
military judge may as a matter of discretion permit the accused to do
so.

\(2\) Statements by accused inconsistent with plea (No change).
Statements by accused inconsistent with plea. If after findings but
before the sentence is announced the accused makes a statement to the
court-martial, in testimony or otherwise, or presents evidence which is
inconsistent with a plea of guilty on which a finding is based, the
military judge shall inquire into the providence of the plea. If,
following such inquiry, it appears that the accused entered the plea
improvidently or through lack of understanding of its meaning and effect
a plea of not guilty shall be entered as to the affected charges and
specifications.

### Discussion

When the accused withdraws a previously accepted plea for guilty or a
plea of guilty is set aside, counsel should be given a reasonable time
to prepare to proceed. In a trial by military judge alone, recusal of
the military judge or disapproval of the request for trial by military
judge alone will ordinarily be necessary when a plea is rejected or
withdrawn after findings; in trial with members, a mistrial will
ordinarily be necessary.

\(3\) New subparagraph. *Alford-type guilty pleas. The requirements of
subparagraph (h)(2) are not applicable to Alford-type pleas. However, if
the military judge determines that the accused has entered an
Alford-type plea to one or more charges or specifications through a lack
of understanding of its meaning and effect, a plea of not guilty shall
be entered as to the affected charge(s) and specification(s).*

\(4\) New subparagraph (Present subparagraph (3)). Pretrial agreement
inquiry. After sentence is announced the military judge shall inquire
into any parts of a pretrial agreement which were not previously
examined by the military judge. If the military judge determines that
the accused does not understand the material terms of the agreement, or
that the parties disagree as to such terms, the military judge shall
conform, with the consent of the Government, the agreement to the
accused\'s understanding or permit the accused to withdraw the plea.

### Discussion

See subsection (f)(3) of this rule. *An inquiry pursuant to R.C.M.
910(e)(1) is not conducted when an accused enters an Alford-type guilty
plea. Therefore, the accused is not likely to make statements considered
to be "inconsistent" with the Alford-type plea. It is still appropriate,
however, for the military judge to ensure that the accused understands
the meaning and effect of his Alford-type guilty plea.*

[^1]: ^\*^ *Major Walburn (B.A., Virginia Intermont College; J.D.,
    University of Tennessee; LL.M., United States Army Judge Advocate
    General's School), is an instructor, The Air Force Judge Advocate
    General School, Maxwell AFB, Alabama. He is a member of the Bar in
    Tennessee.*

[^2]: Mr. Simpson's infamous response when asked by Judge Ito, "How do
    you plead?" The People Of The State Of California v. Orenthal James
    Simpson, No. BA097211 (1995).

[^3]: Uniform Code of Military Justice (1995 ed.) \[hereinafter UCMJ\],
    art. 130. Housebreaking carries a maximum punishment of dishonorable
    discharge, forfeiture of all pay and allowances, and confinement for
    5 years.

[^4]: UCMJ art. 134 (1995). Assault with intent to commit rape carries a
    maximum punishment of dishonorable discharge, forfeiture of all pay
    and allowances, and confinement for 20 years.

[^5]: UCMJ art. 120 (1995). Rape carries a maximum punishment of death
    or other such punishment as a court-martial may direct.

[^6]: Pursuant to the [Manual for Courts-Martial]{.smallcaps}, [United
    States]{.smallcaps}, R.C.M. 210(f)(1)(A)(iii)(b) (1995 ed.)
    \[hereinafter MCM\], if the case is not referred capital (permitting
    consideration of the death penalty as a punishment), the maximum
    confinement would be for life.

[^7]: United States v. Alford, 400 U.S. 25 (1970).

[^8]: Pursuant to R.C.M. 910(a), MCM, the pleas presently available in
    the military are:

    1\. Guilty;

    2\. Not guilty to an offense charged, but guilty of a named lesser
    included offense;

    3\. Guilty with exceptions, with or without substitutions, not
    guilty of the exceptions, but guilty of the substitutions, if any;
    or

    4\. Not guilty.

    Conditional guilty pleas are also permitted. MCM, *supra* note 5,
    R.C.M. 910(b).

[^9]: An accused in the military can be convicted even if he does not
    personally remember committing the offense(s) if, after reviewing
    the evidence against him, he is in fact convinced he committed the
    offense(s). *See* Discussion, MCM, *supra* note 5, R.C.M. 910(e).

[^10]: Curtis J. Shipley, *The Alford Plea: A Necessary but
    Unpredictable Tool for the Criminal Defendant*, 72 [Iowa L.
    Rev]{.smallcaps}. 1063 (1987).

[^11]: *See* *infra* notes 34-40 and accompanying text.

[^12]: Throughout the remainder of this article "*Alford*" and
    "*Alford-type*" pleas should be considered as synonymous.

[^13]: United States v. Epps, 25 M.J. 319 (C.M.A. 1987).

[^14]: There are two types of stipulations: stipulations of fact and
    stipulations of expected testimony. These are discussed in Section
    VI.

[^15]: Two additional areas of court-martial practice could also be
    affected by adoption of the *Alford* plea: the admissibility of a
    prior conviction pursuant to Mil. R. Evid. 609 (*see* *also* Mil. R.
    Evid. 410), and the effect (if any) the *Alford* plea would have on
    our present hearsay exceptions (s*ee* Mil. R. Evid. 803(22)). These
    two areas are not considered a major concern in today's military
    since the chances of remaining on active duty for any length of time
    after conviction by a special or general court-martial is remote.

[^16]: McCarthy v. United States, 394 U.S. 459 (1969).

[^17]: *Id*. at 464.

[^18]: *Id*. at 465-67.

[^19]: *Id*.

[^20]: Boykin v. Alabama, 395 U.S. 238 (1969).

[^21]: *Id*. at 243-44.

[^22]: *Id.* at 243 n.5, citing Johnson v. Zerbst, 304 U.S. 458 (1938).

[^23]: 4 May 1970.

[^24]: Brady v. United States, 397 U.S. 742 (1970).

[^25]: 18 U.S.C. § 1201 (1956).

[^26]: This Act was similar to the North Carolina statute in *Alford*.

[^27]: A similar argument was used in *Alford*. The Supreme Court
    distinguished *Brady* from *United States v. Jackson*, 390 U.S. 570
    (1968), by observing the Court in *Jackson* had prohibited
    imposition of the death penalty under § 1201(a); the Court did not
    hold that all guilty pleas encouraged by the fear of possible death
    are involuntary, nor did it invalidate such pleas whether
    involuntary or not.

[^28]: McMann v. Richardson, 397 U.S. 759 (1970).

[^29]: *Id*. at 766.

[^30]: Parker v. North Carolina, 397 U.S. 790 (1970).

[^31]: *Parker* also involved an attack upon an arguably coerced
    pretrial confession. *Id*. at 797.

[^32]: During the trial Parker again admitted he had committed the
    murder. *Id*. at 798.

[^33]: The Court held the advice received by Parker was "well within the
    range of competence required of attorneys representing defendants in
    criminal cases." *Id*. at 797-98.

[^34]: Tollett v. Henderson, 411 U.S. 258 (1973).

[^35]: Review of guilty pleas when improper legal advice is alleged are
    examined under the present standard for determining effectiveness of
    counsel found in *Strickland v. Washington*, 466 U.S. 668 (1984);
    *see also* Hill v. Lockhart, 474 U.S. 52 (1985).

[^36]: Based on these cases Rule 11 was modified in 1975. Although Rule
    11 has also been amended several times since 1975, the basic
    requirements of these cases still control its application. Notably,
    Rule 11(h) expressly adopted a harmless-error standard when
    reviewing alleged violations of the procedures contained within the
    rule. This in effect overruled the part of *McCarthy* which held
    noncompliance with Rule 11 was per se prejudicial (S*ee* McCarthy v.
    United States, 394 U.S. 459, 471-72 (1969)).

[^37]: Fed. R. Crim. P. 11(a).

[^38]: The government may agree to do any of the following:

    \(1\) move for dismissal of other charges;

    \(2\) make a recommendation, or agree not to oppose the defendant's
    request, for a particular sentence, with the understanding such
    recommendation or request shall not be binding upon the court; or

    \(3\) agree that a specific sentence is the appropriate disposition
    of the case.

    The plea agreement may require the defendant to plead guilty to the
    charged offense or a lesser or related offense. The court may not
    participate in plea bargaining discussions. Fed. R. Crim. P.
    11(e)(1).

[^39]: *Id*. 11(d).

[^40]: *Id*. 11(e)(3) and (4).

[^41]: *Id.* 11(e)(4). In the military this is known as "cold-pleading."

[^42]: *Id*. 11(f).

[^43]: [Black's Law Dictionary 1048 (6th. ed. 1990).]{.smallcaps}

[^44]: Hudson v. United States, 272 U.S. 451, 453 (1926); *see also*
    United States v. Norris, 281 U.S. 619 (1929) (holding the plea of
    *nolo contendere* has the effect of plea of guilty for purposes of
    the case); and Lott v. United States, 367 U.S. 421, 426 (1961) (plea
    of *nolo contendere* is equivalent of admitting every essential
    element of offenses charged and is tantamount to 'an admission of
    guilt for purposes of the case,' quoting Hudson v. United States).

[^45]: 272 U.S. 451 at 453.

[^46]: For additional background on the plea of *nolo contendere, see* 1
    [C. Wright, Federal Practice and Procedure]{.smallcaps} § 177
    (1982).

[^47]: *See* 2 [Frederick Pollock & Frederic W. Maitland, The History of
    English Law]{.smallcaps} 517 (2d ed. 1899).

[^48]: [Anon., Y.B. Hill]{.smallcaps}., 9 Hen. 6, f. 59, pl.8 (1431).

[^49]: Section 1 of that Act provides for the suspension of the sentence
    and release of the prisoner on probation "after conviction or after
    a plea of guilty or nolo contendere for any crime or offense not
    punishable by death or life imprisonment . . . ." Probation Act of
    1925, 43 Stat. 1259 (1925); 272 U.S. 451 at 452-53.

[^50]: Such a plea also included a prayer for leniency. The present view
    of the true meaning of a *nolo* plea is not clear, *see* *supra*
    note Error: Reference source not found and accompanying text. For
    purposes of this article the view adopted by the Supreme Court and
    Rule 11 is accepted as accurate.

[^51]: United States v. Alford, 400 U.S. 25, 35 n.8 (1970).

[^52]: Fed. R. Crim. P. 11(f). This rule only requires a factual basis
    for *guilty pleas*, not pleas of *nolo contendere*. The Notes of the
    \[Federal\] Advisory Committee on Rules state: "For a variety of
    reasons it is desirable in some cases to permit entry of judgment
    upon a plea of *nolo contendere* without inquiry into the factual
    basis for the plea. The new third sentence (referring to
    subparagraph f) is not, therefore, made applicable to pleas of *nolo
    contendere*." This result is consistent with the common law plea of
    *nolo contendere* and its development by the courts. When exploring
    this area of the law one must constantly determine whether the
    origin of the guilty plea rule being examined is constitutionally
    required, or set in place by statute or case law. This "inquiry"
    refers to a question and answer session with the accused.

[^53]: These steps are also required before accepting a "traditional"
    guilty plea. Fed. R. Crim. P. 11(a).

[^54]: Fed. R. Crim. P. 11(c).

[^55]: *Id*. 11(e)(6)(B). *See* also 4 [Wigmore]{.smallcaps} ¶ 1066(4)
    at 58 (3d ed. 1940, Supp. 1970); Rules of Evidence for United States
    Courts and Magistrates, Rule 803(22) (Nov. 1971); Bruce Lenvin and
    Michael Meyers, *Nolo Contendere: Its Nature and Implications*, 51
    [Yale L.J]{.smallcaps}. 1255 (1942); and ABA Standards Relating to
    Pleas of Guilty § 1.1(a) and (b), Commentary at 15-18 (Approved
    Draft, 1968). This prohibition concerns the use of the plea to
    "prove" the accused's guilt in a later proceeding. It does not
    include the use of the conviction obtained after the accused has
    entered a plea of *nolo contendere* for impeachment purposes
    pursuant to Federal Rule of Evidence 609 (as well as Mil. R. Evid.
    609).

[^56]: *See infra* note Error: Reference source not found and
    accompanying text. Admission of criminal culpability is sometimes
    important in developing a rehabilitation plan for the defendant.

[^57]: *See* Edward Lane-Reticker, *Nolo Contendere in North Carolina*,
    34 [N.C. L. Rev]{.smallcaps}. 280 at 290-291 (1956) (criticizing the
    plea); and Note, *The Nature and Consequences of the Plea of Nolo
    Contendere*, 33 [Neb. L. Rev]{.smallcaps}. 428 at 434 (1954)
    (favoring the plea). The American Bar Association Project on
    Standards for Criminal Justice takes the position that "the case for
    the nolo plea is not strong enough to justify a minimum standard
    supporting its use," but because "use of the plea contributes in
    some degree to the avoidance of unnecessary trials" it does not
    proscribe use of a *nolo* plea. ABA, *Standards Relating to Pleas of
    Guilty* ¶ 1.1(a), Commentary at 16 (Approved Draft, 1968).

[^58]: United States v. Bagliore, 182 F. Supp. 714, 716 (E.D.N.Y. 1960).

[^59]: United States v. Jones, 119 F. Supp. 288, 290 (S.D. Cal. 1954).
    The trial court is empowered to balance the competing interests in
    determining the desirability of a *nolo contendere* plea. Factors
    which should be considered include the position of the government
    and the defendant, as well as the interest of the public in the
    effective administration of justice (*see* Fed. R. Crim. P.
    11(a)(1)(b)).

[^60]: MCM, *supra* note 5, R.C.M. 910(d) and (e).

[^61]: UCMJ art. 45 (1995).

[^62]: If a general or special court-martial. MCM, *supra* note 5,
    R.C.M. 501(b).

[^63]: If the accused answers the questions under oath, on the record,
    in the presence of counsel, the accused's answers may later be used
    against the accused in a prosecution for perjury or false statement.
    MCM, *supra* note5, R.C.M. 910(c)(5).

[^64]: United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).
    In *Care* the Court of Military Appeals held that effective thirty
    days after the date of the opinion, all records of trial involving
    guilty pleas must contain, in addition to an explanation of the
    elements of the offense, a personal interrogation of the accused
    concerning what he did "to make clear the basis for a determination
    by the military judge . . . whether the acts or the omissions of the
    accused constitute the offense or offenses to which he is pleading
    guilty." 40 C.M.R. 247 at 253. For a critical analysis of *Care* the
    reader is directed to a thought-provoking article by Terry L.
    Elling, *Guilty Plea Inquiries: Do We Care Too Much?*, 134 [Mil. L.
    Rev]{.smallcaps}. 195 (Fall 1991).

[^65]: MCM, *supra* note 5, R.C.M. 910(f).

[^66]: A pretrial agreement does not *always* contain a sentence
    limitation. For example, the agreement may only require the
    government refer the case to a particular level court (i.e., special
    court-martial versus a general court-martial). MCM, *supra* note 5,
    R.C.M. 705(b)(2)(A). Of course, such a referral does limit the
    punishment the accused may receive because the maximum punishment
    available to a special court-martial is substantially less than at a
    general court-martial. MCM, *supra* note 5, R.C.M. 201(f).

[^67]: A court-martial panel is similar to a civilian jury.

[^68]: If the accused has chosen to be sentenced by the military judge,
    the military judge announces his sentence, then consults the quantum
    portion of the pretrial agreement. If the judge's sentence is
    "lighter" than that agreed to by the parties, the accused receives
    the benefit of the judge's sentence. If a panel sentences the
    accused, the panel announces the sentence, is dismissed, and the
    judge then examines the quantum portion of the pretrial agreement.
    As with the military judge, if the panel's sentence is "lighter" the
    accused receives the benefit of the more favorable sentence. If the
    sentence announced is "greater" than the pretrial agreement, then
    the sentence cap of the pretrial agreement controls. By following
    this procedure the sentencing authority is not "tainted" by
    knowledge of the sentence ceiling contained within the pretrial
    agreement. MCM, *supra* note 5, R.C.M. 705(e).

[^69]: MCM, *supra* note 5, R.C.M. 910(h)(3).

[^70]: *Id.*

[^71]: United States v. Epps, 25 M.J. 319 (C.M.A. 1987).

[^72]: On October 5, 1994, the United States Court of Military Appeals
    was renamed the United States Court of Appeals for the Armed Forces
    \[hereinafter CAAF\].

[^73]: *See* *supra* note Error: Reference source not found and
    accompanying text.

[^74]: United States v. Alford, 400 U.S. 25, 28 (1970).

[^75]: [N.C. Gen. Stat]{.smallcaps}. § 14-17 (1965). The provision of
    North Carolina law permitting guilty pleas to capital offenses was
    repealed in 1969.

[^76]: *Id*. § 14-17.

[^77]: Alford was a likely candidate for the death penalty based on his
    impressive criminal resume. Besides the current murder, Alford had
    served six years of a ten-year sentence for murder, been convicted
    *nine* times for armed robbery, and also had convictions for
    forgery, transporting stolen goods, and carrying a concealed weapon.
    400 U.S. 25 at 29 n.4.

[^78]: Almost all of the witnesses interviewed by Alford's attorney
    supported the prosecution's case against Alford. 400 U.S. at 27.

[^79]: During his arraignment he testified he did not kill the victim.
    Alford told the judge: "Well, I'm still pleading that you all got me
    to plead guilty. I plead the other way, circumstantial evidence;
    that the jury will prosecute me on \-- on the second. You told me to
    plead guilty, right. I don't \-- I'm not guilty but I plead guilty."
    400 U.S. 25 at 28 n.2.

[^80]: 400 U.S. 25 at 29-30.

[^81]: 405 F.2d at 341, Alford v. North Carolina, No. 10,391 (4th Cir.
    August 25, 1966) (Mem.).

[^82]: *Id*.

[^83]: 405 F.2d at 342.

[^84]: Alford v. North Carolina, 405 F.2d 340, 341 (4th Cir. 1968).

[^85]: United States v. Jackson, 390 U.S. 570 (1968).

[^86]: *Id.* at 570-72 (footnote omitted).

[^87]: *Id.*

[^88]: Justices Brennan, Douglas and Marshall dissented.

[^89]: The final outcome on the remand of Alford's case is apparently
    unreported.

[^90]: United States v. Brady, 397 U.S. 742 (1970).

[^91]: United States v. Alford, 400 U.S. 25, 31 (1970).

[^92]: *Id*. at 37. Such a situation could arise when a defendant is
    voluntarily under the influence of drugs or alcohol.

[^93]: *Id*. (citing *Brady,* 400 U.S. 25 at 32 and McCarthy v. United
    States*,* 394 U.S. 459 (1969)).

[^94]: 400 U.S. at 37.

[^95]: *Id*. at 36 n.8.

[^96]: *Id*. at 37. The Court's decision left unclear what constitutes
    "a strong factual basis." This issue is discussed in Section IVB,
    *infra*.

[^97]: *Id*. at 37-38.

[^98]: *Id*. at 38.

[^99]: *Id*.

[^100]: *Id*. at 36 n.8.

[^101]: David Alschuler, *The Defense Attorney's Role in Plea
    Bargaining*, 84 [Yale L.J]{.smallcaps}. 1179, 1292n.1 (1975); *see
    also* State v. Hanson, 344 N.W.2d 725, 728 (Iowa Ct. App. 1983).

[^102]: United States v. Webb, 433 F.2d 400, 403 (1st Cir. 1970), *cert.
    denied*, 401 U.S. 958 (1971).

[^103]: [Ala. Code § 15-15-23 (1995).]{.smallcaps} Alabama may require
    this standard because there is no appellate review of guilty pleas
    except in capital cases. *See* Joan Barkai, *Accuracy Inquiries for
    All Felony and Misdemeanor Pleas: Voluntary Pleas but Innocent
    Defendants*?, 126 [U. Pa. L. Rev]{.smallcaps}*.* 88 at 126n.251.

[^104]: United States v. Morrow, 914 F.2d 608 (4th Cir. 1990).

[^105]: United States v. Tunning, 69 F.3d 107 (6th Cir. 1995).

[^106]: United States v. Keiswetter, 860 F.2d 992 (10th Cir. 1988),
    *modified in part on reh'g en banc,* 866 F.2d 1301 (10th Cir. 1989).

[^107]: United States v. Hecht, 638 F.2d 651 (3rd Cir. 1981). This issue
    was not central to the decided issue in *Hecht*.

[^108]: United States v. Cox, 923 F.2d 519 (7th Cir. 1991). *Cox*
    involved the rejection by the trial court of an *Alford* plea. While
    somewhat blurring the distinction between the requirements of Rule
    11, and the requirements of *Alford* as understood by the Court*,*
    Chief Judge Bauer stated:

    > The court had before it the entire body of evidence adduced at the
    > first trial (which resulted in a mistrial); certainly a sufficient
    > factual basis to satisfy Rule 11. Cox himself agreed that the
    > Government's proof was strong, and believed that it would likely
    > result in a conviction. It was that belief that motivated him to
    > knowingly and voluntarily waive his right to trial in return for
    > the assurance of a sentence of only two years. Thus, the
    > requirements of *Alford* were satisfied as well.

[^109]: United States v. Alber, 56 F.3d 1106 (9th Cir. 1995).

[^110]: United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977); *see*
    *also,* Clicque v. United States, 514 F.2d 923, 931 (5th Cir. 1975)
    (finding defendant's conduct fell within the ambit of criminal
    activity).

[^111]: 546 F.2d at 1226.

[^112]: *Id*. at 1110.

[^113]: *Id.* (citing United States v. Neel, 547 F.2d 95, 96 (9th Cir.
    1976)).

[^114]: 914 F.2d 608 at 612.

[^115]: *Id.* at 611.

[^116]: *Id*.

[^117]: *Id*. citing United States v. Lumpkins, 845 F.2d 1444, 1451 (7th
    Cir. 1988); and United States v. Pinto, 838 F.2d 1566, 1569 (11th
    Cir. 1988).

[^118]: United States v. Morrow, 914 F.2d 608 at 612.

[^119]: United States v. Tunning, 69 F.3d 107 (6th Cir. 1995).

[^120]: 860 F.2d 992 at 995 n.6.

[^121]: United States v. Alford, 400 U.S. 25, 39 (1970).

[^122]: *Id*. n.11.

[^123]: *Id*.

[^124]: *Id*. *See also* United States v. Bednarski, 455 F.2d 364, 365
    (1st Cir. 1971) ("We find nothing in *Alford* that obliges the court
    to accept a guilty plea merely because it was warranted in doing
    so.").

[^125]: 400 U.S. at 39 n.11.

[^126]: *Id.*

[^127]: Alschuler, *supra* note Error: Reference source not found, at
    1301.

[^128]: United States v. Gaskins, 485 F.2d 1046 (D.C. Cir. 1973).

[^129]: Farley v. Glanton, 280 N.W.2d 411, 415 n.2 (Iowa 1979).

[^130]: United States v. Cox, 923 F.2d 519 (7th Cir. 1991).

[^131]: *Id*. at 524-25. The trial court in *Cox* rejected the plea
    agreement stating:

    > Without \[Cox's admission of guilt of distribution to Vasquez\], I
    > do not feel comfortable in finding him guilty, and because as I
    > understand it there has been a denial of guilt of the charges
    > brought against him and the essential elements therein, I cannot
    > accept the guilty plea at this time. Id.

[^132]: *Id*. (citing United States v. Bednarski, 445 F.2d 364 (1st Cir.
    1971)).

[^133]: Alschuler, *supra* note Error: Reference source not found, at
    1298-99. *See also* 2 [David Rossman, Criminal Law
    Advocacy]{.smallcaps} ¶ 9.01(3), at 9-7 to 9-8. Some states have
    statutorily recognized the *Alford* plea:

    > A defendant who is unwilling to admit to any element of the
    > offense that would provide a factual basis for a plea of guilty
    > may, with the consent of the court, enter a plea of guilty to the
    > offense if the defendant considers the plea to be in the
    > defendant's best interest and if a factual basis exists for the
    > plea.
    >
    > [Mont. Code Ann.]{.smallcaps} § 46-12-212(2) (1993).

[^134]: *See* [Mich. Stat. Ann]{.smallcaps}. § 6.302 (D)(1) (Law. Co-op.
    1995); [Ind. Code Ann]{.smallcaps}. § 35-4-1-4(b) (Michie 1985).

[^135]: Shipley, *supra* note Error: Reference source not found, at
    1068. In reaching this conclusion Shipley states: "An explanation
    for the lack of judicial enthusiasm toward *Alford* pleas is the
    fact that many states have adopted the *Alford* principle in cases
    affirming trial court decisions to accept equivocal pleas rather
    than in cases giving defendants a right to have their equivocal
    pleas accepted" (footnotes omitted).

[^136]: United States v. Morrow, 914 F.2d 608 (4th Cir. 1990).

[^137]: *Id*. at 611 n.6 (citing United States v. Punch, 709 F.2d 889
    (5th Cir. 1983) (footnote omitted)). The Fifth Circuit continues to
    express reservations concerning the desirability of *Alford* pleas.
    *See* United States v. Harlan, 35 F.3d 176, 182 n.7 (5th Cir. 1994).

[^138]: 6 Fed. Sent. R. 317, Principles of Federal Prosecution, Part
    D(4) (May/June 1994). The principles of federal prosecution are
    intended to promote the reasoned exercise of prosecutorial
    discretion by attorneys for the government. *See also* 10 [DoJ
    Alert]{.smallcaps} 21 (October 1992) announcing that the Criminal
    Division had amended the U.S. Attorney's Manual to require
    Department of Justice review of all "*Alford* pleas."

[^139]: 6 Fed. Sent. R. 317, Principles of Federal Prosecution, Part
    D(4) (May/June 1994).

[^140]: *Id.*

[^141]: *Id*.

[^142]: *Id.* The potential threat of lengthy confinement, or additional
    charges, often gives the government the ability to dictate the terms
    of any pretrial agreement. This includes not only any sentence
    limitation but also the charges which the defendant must plead
    guilty to in order to obtain such an agreement.

[^143]: *Id.* In spite of a defendant's presumption of innocence one may
    argue that the government always holds the "upper hand." This
    conclusion is based on the inherent power and discretion of the
    prosecutor's office, as well as the investigatory resources not
    normally available to defendants.

[^144]: Santobello v. New York, 404 U.S. 257 (1971).

[^145]: *Id*. at 260. An in-depth discussion of the merits, necessity,
    or wisdom of plea bargaining is beyond the scope of this paper.

[^146]: *See* MCM, *supra* note 5, R.C.M.s 918(c) and 920(e)(5).

[^147]: As will be discussed, if the military adopts *Alford*-type
    guilty pleas*,* the required quantum of proof should be clearly
    established. *See* discussion of R.C.M. 910(e) in Section VII,
    *infra*.

[^148]: United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).

[^149]: UCMJ art. 120 (1995).

[^150]: UCMJ art. 134 (1995). Article 134 covers a variety of crimes not
    specifically mentioned in the other punitive articles.

[^151]: *Id*.

[^152]: The actual pretrial agreement will of course be a product of
    several factors: the skills of the trial and defense counsel, the
    strength of the government's case, the desire of the government to
    protect the victim(s) from the ordeal of a fully contested case, and
    the degree of willingness on the accused's part to accept
    culpability.

[^153]: UCMJ art. 20 (1995).

[^154]: UCMJ art. 134 (1995).

[^155]: *Id*. The presence, and number, of lesser included offenses
    depends on the facts of a particular case (as well as the manner in
    which a particular case has been charged). *See* United States v.
    Weymouth, 43 M.J. 329 (1995).

[^156]: *See* MCM, *supra* note Error: Reference source not found,
    R.C.M. 705(e), and accompanying text. As that note points out,
    obtaining a sentence which punishes the accused more seriously than
    the limitation contained in the pretrial agreement permits the
    accused to receive the "maximum" punishment authorized by the
    agreement.

[^157]: The Federal Sentencing Guidelines do not automatically require
    this conclusion. These Guidelines, and the mitigation aspect of an
    *Alford* plea, are discussed in more detail in Section VII, *infra*.

[^158]: *See* *supra* note 5 and accompanying text.

[^159]: At least to some of the charges and specifications.

[^160]: MCM, *supra* note 5, R.C.M.s 910(c)(5) and 910(e).

[^161]: MCM, *supra* note 5, R.C.M. 910(c)(5).

[^162]: But this conclusion defies logic and reality. No one can
    seriously argue that a federal conviction negatively impacts the
    accused only. Such a conviction is often almost as devastating (both
    emotionally and financially) on the accused's family, friends and
    the surrounding community. Many times the accused represents the
    head of the household and serves as the primary economic provider.
    If the accused is a servicemember, his conviction often leads to the
    loss of the important benefits his military service has provided to
    his family (i.e., government quarters, medical and dental care,
    commissary and post exchange privileges, etc.).

[^163]: The author believes many defense attorneys, prosecutors, and for
    that matter, lay persons, have come to the unofficial conclusion
    that an accused has an almost "constitutional" right to lie about
    his or her guilt (false swearing charges to the contrary).

[^164]: Rossman, *supra* note Error: Reference source not found, ¶
    9.02(2)(c)(i), at 9-20-25. A discussion of the history and scope of
    such safeguards is well beyond the scope of this paper. To name just
    a few reinforces this fact: the presumption of innocence, the burden
    of proof, the right against self-incrimination, the right to a jury
    trial, and the rules of evidence.

[^165]: Accused can claim they are innocent but are being "forced" to
    plead guilty by the "system." *See* [J. Bond, Plea Bargaining and
    Guilty Pleas §]{.smallcaps} 3.55(c) (2d ed. 1982).

[^166]: United States v. Bednarski, 445 F.2d 364 (1st Cir. 1971).

[^167]: *Id*. at 366.

[^168]: *See* *supra* notes Error: Reference source not found-120 and
    accompanying text.

[^169]: United States v. Carter, 619 F.2d 293 (3rd Cir. 1980). In the
    military, R.C.M. 1201(a) provides automatic review by a Court of
    Criminal Appeals for all cases which include a sentence containing
    any of the following: (1) death; (2) a punitive discharge; or (3)
    confinement for one year or longer, unless the accused has waived or
    withdrawn appellate review.

[^170]: David Starkweather, *The Retributive Theory of "Just Deserts"
    and Victim Participation in Plea Bargaining*, 67 [Ind.
    L.J]{.smallcaps}. 853 (1992).

[^171]: *Id.* at 865.

[^172]: *Id*. at 866.

[^173]: *Id*. at 867.

[^174]: The Victim/Witness Protection Act of 1982, 18 U.S.C.A. §§ 1501
    note, 1503, 1505, 1510, 1512 note, 1512-15, 3146, 3579, 3580 (West
    1984 & Supp. 1994); 18 App. Rule 32 (1988); the Victims of Crime Act
    of 1984, 42 U.S.C.A. §§ 10601-03 (West 1995); and the Victim's
    Rights and Restitution Act of 1990, 42 U.S.C.A. §§ 10606-07 (West
    1995). For a service's implementation of these laws see [Dep't of
    Army, Reg. 27-10, Military Justice]{.smallcaps}, Chapter 18 (8
    August 1994 Update).

[^175]: It would seem the *Alford* plea is a truly advantageous option
    for defendants since they gain the ability to plea bargain a
    limitation on their punishment without ever admitting guilt. The
    author readily admits the obvious: refusal to admit guilt doesn't
    equal innocence. Almost every defense counsel has encountered at
    least one client who steadfastly maintained his innocence until the
    overwhelming evidence (or the government's charitable deal) allowed
    him to "see the light" and "confess" his guilt to the defense
    counsel and others. However, there is at least one area where the
    *Alford* plea may prove problematic: sex offenses. This problem is
    ably discussed by Alice J. Hinshaw, *State v. Cameron: Making the
    Alford Plea an Effective Tool in Sex Offense Cases*, 55 [Mont. L.
    Rev]{.smallcaps}. 281 (1994). To successfully enter and complete a
    sex offender program requires the admission of guilt. *See* [Dep't
    of Army, Reg. 608-18, The Army Family Advocacy Program]{.smallcaps},
    para. 3-28, 4-4 (1 September 1995). An accused's steadfast denial of
    criminal responsibility in this area may deny him or her the very
    help he or she so desperately needs. If the military adopts an
    *Alford*-type plea, defense counsel and military judges must ensure
    the possible collateral effects of the plea are properly explained
    to the accused; e.g., denials of culpability after conviction may
    make the offender ineligible to participate in a sexual offender
    rehabilitative program. The accused may decide that the benefits of
    enrollment in a sex offender program outweigh the benefits of
    entering an *Alford* plea. Only the accused and his family can make
    such a personal decision. It is crucial that the accused be fully
    informed of the consequences of his *Alford*-type plea so that the
    decision can be an informed one.

[^176]: MCM, *supra* note 5, R.C.M. 910(c)(4).

[^177]: *Id.* R.C.M. 910(c)(3).

[^178]: *Id*. R.C.M. 910(c)(1).

[^179]: *Id.* R.C.M. 910(f).

[^180]: *Id*. R.C.M. 910(e).

[^181]: *Id*. R.C.M.s 910(c)(5), 910(e) and 910(f).

[^182]: Fed.R.Crim.P. 11(f). *See also* United States v. Morrow, 914
    F.2d 608, 612 (4^th^ Cir. 1990).

[^183]: The military does not presently rely on a presentence report.
    For an in-depth discussion of sentencing within the military see
    Kevin Lovejoy, *Abolition of Court Member Sentencing in the
    Military*, 142 [Mil. L. Rev]{.smallcaps}. 1 (1993).

[^184]: United States v. Sweet, 38 M.J. 583 (N.M.C.M.R. 1993).

[^185]: *Id*. at 589 (citations omitted).

[^186]: *See* Mil. R. Evid 103 and 104.

[^187]: In *United States v. Sweet*, 38 M.J. 583 (N.M.C.M.R. 1993) (en
    banc), the court stated:

    > "We encourage the use of stipulations to support the factual basis
    > for guilty pleas because they are usually prepared in a more
    > relaxed atmosphere than that at trial, they can be drafted to
    > ensure factual accuracy, and they establish a framework for
    > counsel and the accused to discuss the applicable law." *Id* at
    > 592.

[^188]: In over 10 years of practicing law in the military the author is
    unaware of a single instance where a negotiated guilty plea was not
    supported by a stipulation of fact.

[^189]: An example would be a soldier who, charged with desertion under
    Article 85, UCMJ, will only plead guilty to AWOL (absence without
    leave, a violation of Article 86, UCMJ). The accused is willing to
    enter a confessional stipulation concerning the AWOL. This
    stipulation would therefore contain all the facts necessary to prove
    desertion except the intent to remain away permanently (the only
    real difference between AWOL and desertion). The government would
    then only be required to offer evidence on this single element.
    *See* United States v. Wilson, 20 U.S.C.M.A. 71, 42 C.M.R. 263
    (1970). In *Wilson*, the only evidence concerning the element of the
    accused's intent to remain away permanently was a stipulation of
    fact and the accused's own in-court testimony. The COMA held the
    stipulation of fact was not confessional (as to desertion) and that
    inconsistencies within the accused's testimony led to the conviction
    for desertion.

[^190]: MCM, *supra* note 5, R.C.M. 705(c)(2) states:

    > Subject to subsection (c)(1)(A) of this rule \[requiring that any
    > term or condition in a pretrial agreement must be entered freely
    > and voluntarily by an accused\], subsection (c)(1)(B) of this rule
    > \[dealing with the deprivation of certain rights of an accused\]
    > does not prohibit either party from proposing the following
    > additional conditions: (A) A promise to enter into a stipulation
    > of fact concerning offenses to which a plea of guilty or as to
    > which a confessional stipulation will be entered.

[^191]: United States v. Bertelson, 3 M.J. 314 (C.M.A. 1977).

[^192]: In the military an accused must be "provident" to their guilty
    plea. In other words, the accused must willingly agree that they
    committed the offense(s) and that they have no valid legal defense.
    MCM, *supra* note 5, R.C.M. 910.

[^193]: 3 M.J. at 315 n.1.

[^194]: The COMA stated: "We believe that a stipulation can be said to
    amount 'practically' to a judicial confession when, for all facts
    and purpose, it constitutes a *de facto* plea of guilty, i.e., it is
    the equivalent of entering a guilty plea to the charge" *Id*. at 315
    n.2.

[^195]: 3 M.J. at 315.

[^196]: United States v. Gustafson, 17 U.S.C.M.A. 150, 37 C.M.R. 414
    (1967); United States v. Frederick, 3 M.J. 230 (C.M.A. 1977). Once
    accepted, the parties are bound by a stipulation of fact unless the
    stipulation is withdrawn or stricken from the record. United States
    v. Gerlach, 16 U.S.C.M.A. 383, 385, 37 C.M.R. 3, 5 (1966).

[^197]: The court in *Bertelson* upheld the potential use of such
    stipulations although the language of then paragraph 154b(1) of the
    1969 Manual for Courts-Martial stated "\[W\]henever an accused has
    pleaded not guilty and the plea still stands, a stipulation which
    practically amounts to a confession should not be received in
    evidence." 3 M.J. at 316. However, the court cautioned that before
    permitting the use of a stipulation which the accused himself wants
    admitted, the military judge must inform him of the provisions of
    this paragraph to ensure he understands that absent his consent a
    stipulation of fact is inadmissible. 3 M.J. at 316. This provision
    is no longer in the Manual for Courts-Martial.

[^198]: *Id*. at 315.

[^199]: *Id.* at 316-17. The court set aside Bertelson's conviction
    because the judge failed to properly conduct these two inquiries.
    The court was particularly concerned about the existence of an
    agreement not to raise defenses or motions, which was prohibited.

[^200]: United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969)
    (requiring that prior to accepting a plea the court determine is was
    voluntarily made and factually sound). *See also* United States v.
    Terry, 21 U.S.C.M.A. 442, 45 C.M.R. 216 (1972); and United States v.
    Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976). These
    requirements are now found in R.C.M. 910(d) and (e).

[^201]: 3 M.J. at 316.

[^202]: MCM, *supra* note 5, R.C.M. 811(a).

[^203]: MCM, *supra* note 5, R.C.M. 811(c).

[^204]: *See supra* Section VI.

[^205]: The Discussion to R.C.M. 811(c) states that a stipulation
    practically amounts to a confession when it is the equivalent of a
    guilty plea (ala *Bertelson*) when it establishes, directly or by
    reasonable inference, every element of a charged offense and when
    the defense does not present evidence to contest any potential
    remaining issue of the merits.

[^206]: *Id*.

[^207]: Although defense counsel should carefully weigh the sentence
    potential being arguably gained by the government in convicting the
    accused of additional charges and specifications.

[^208]: The government enters pretrial agreements containing
    "split-pleas" because it is able to gain a conviction on the
    additional charges with relative ease. This is true because the
    stipulation has reduced (or eliminated) the need for live testimony
    (thereby saving the government time, and in many cases, money). The
    government is also likely to gain ammunition from the stipulation to
    use on sentencing.

[^209]: For example, in *Alford*, the defendant could have agreed to
    stipulate to the following apparently undisputed facts: (1) the
    victim and Alford had argued the day of the killing; (2) Alford had
    earlier taken his shotgun from his home and threatened to kill the
    victim; and (3) after the victim's death Alford claimed to have
    killed the victim.

[^210]: MCM, supra note 5, R.C.M. 811.

[^211]: *Id*.

[^212]: MCM, supra note 5, R.C.M. 811(e). Another potential hurdle is
    that this rule states that the Military Rules of Evidence apply to
    the contents of a stipulation. Stipulations of expected testimony,
    on the other hand, do not face this requirement.

[^213]: Notwithstanding the potential problems with rehabilitating an
    accused who refuses to claim culpability, the *Alford* plea offers a
    viable solution to effectively resolve these cases.

[^214]: This could be accomplished by requiring the accused to agree (as
    part of the pretrial agreement) to admission of a stipulation of the
    victim's expected testimony.

[^215]: *See supra* Section VI.

[^216]: *See supra* note Error: Reference source not found and
    accompanying text.

[^217]: MCM, *supra* note 5, R.C.M. 1001(b)(5)(A).

[^218]: [Dep't of Army, Pamphlet 27-9, Military Judge's
    Benchbook]{.smallcaps} 101 (Sept. 30, 1996) \[hereinafter
    [Benchbook]{.smallcaps}\].

[^219]: [U.S. Sentencing Guidelines Manual]{.smallcaps} (1995)
    \[hereinafter [Guidelines]{.smallcaps}\].

[^220]: The court may only depart upwards or downwards from the
    determined range for good cause. An in-depth discussion of these
    Guidelines is beyond the scope of this paper.

[^221]: [Guidelines]{.smallcaps}, supra note Error: Reference source not
    found, § 3E1.1.

[^222]: United States v. Tucker, 925 F.2d 990, 993 (6th Cir. 1991). The
    court did, however, uphold the trial court's denial of the reduction
    based on other indications that the defendant had failed to meet the
    burden of proving that she accepted responsibility for her actions.

[^223]: *See also* United States v. Rodriguez, 905 F.2d 372, 373 (11th
    Cir. 1990).

[^224]: 925 F.2d at 992 (1991).

[^225]: United States v. Harlan, 35 F.3d 176 (5th Cir. 1994); 925 F.2d
    at 20 (1st Cir. 1991).

[^226]: [Guidelines]{.smallcaps}, *supra* note Error: Reference source
    not found, § 3E1.1, Commentary.

[^227]: [Guidelines]{.smallcaps}, *supra* note Error: Reference source
    not found, § 3E1.1, application note 3.

[^228]: 905 F.2d 372 (1990).

[^229]: 35 F.3d 176 (1994).

[^230]: *Id*. at 180.

[^231]: [Benchbook]{.smallcaps}, *supra* note Error: Reference source
    not found, pg. 101.

[^232]: This is a variation of the instruction presently found in the
    Benchbook concerning the mitigation of a guilty plea. *See* *id*.

[^233]: An accused who chooses to accept responsibility for only one or
    two of many offenses will arguably receive only minimal mitigation
    consideration.

[^234]: MCM, *supra* note 5, R.C.M. 910(d) and (e)*.*

[^235]: *See* *supra* note Error: Reference source not found and
    accompanying text.

[^236]: UCMJ art. 36(a) (1995).

[^237]: The conviction of an innocent person pursuant to any guilty plea
    should be rare because of the requirement that a factual basis for
    the plea be established prior to acceptance by court. Unfortunately,
    no system is perfect.

[^238]: Comment to [Principles of Federal Prosecution]{.smallcaps},
    *supra* note Error: Reference source not found*.*

[^239]: ^^ These words should be omitted.