Sentence concessions in return for a plea of guilty are discussed in People v. Earegood (1968), 12 Mich. App. 256. For still another aspect of plea bargaining, see People v. Hollman (1968), 12 Mich. App. 231.

The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts (1967), hereinafter cited as Task Force Report, contains a study of Detroit recorder's court, with 1963-1965 figures, pp 129-138. In 1966 and 1967, the figures were 85.27% and 88.77%, respectively. Annual Report, The Recorder's Court of the City of Detroit, Michigan (1966), p 6; id. (1967), p 7.
"Observations of the guilty plea process in recorder's court made it unmistakably clear that the high rate of pleas was heavily dependent upon the inducement of charge reduction to get a guilty plea entered. For example, a study of 188 sample felony cases in recorder's court in 1962 showed that 19 were disposed of by guilty pleas to the original charge, whereas 113 pleas were entered to reduced charges." ABA Foundation, Law Enforcement in the Metropolis, a working paper on the criminal law system in Detroit (1967), p 132.

For a discussion of the mechanics of plea negotiation in Michigan, see Newman, Conviction: The Determination of Guilt or Innocence Without Trial (1966), pp 78-83. For further discussion of the mechanics of the system in Detroit, see footnote 2, supra.

"A substantial percentage of guilty pleas are the product of negotiations between the prosecutor and defense counsel or the accused * * * under which the accused will enter a plea of guilty in exchange for a reduced charge or a favorable sentence recommendation by the prosecutor." Task Force Report, p 9.
Even a guilty man who desires to plead guilty needs a lawyer, frequently at State expense, to negotiate a deal on the best obtainable terms: "Too often the result may be excessive leniency for professional and habitual criminals who generally have expert legal advice and are best able to take full advantage of the bargaining opportunity. Marginal offenders, on the other hand, may be dealt with harshly, and left with a deep sense of injustice, having learned too late of the possibilities of manipulation offered by the system." Task Force Report, p 11.
Some accused persons waive counsel in a desperate effort to curry favor. If one can obtain a charge concession in exchange for a guilty plea, it is understandable that some may believe additional concessions may be obtained by full "cooperation", the waiving of counsel. Newman, Pleading Guilty for Consideration: A Study of Bargain Justice, 46 J Crim LC PS 780, 783-785 (1956).

Many oppose minimum sentence laws. However, use of plea bargaining successfully and continuously to avoid what some regard to be "harsh and outdated" laws [Newman, Conviction: The Determination of Guilt or Innocence Without Trial (1966), p 90; Task Force Report, pp 10, 11] may actually prevent proper legislative reform, by shielding from visibility the mandated, supposedly harmful results. The inequities of "unwise" laws, therefore, remain on the books to be used against a few unfortunates unable to obtain the dispensations generally available.

"The convicted person finds in this practice confirmation of his belief in the futility of reform." Dash, Cracks in the Foundation of Criminal Justice, 46 Ill L Rev 385, 394 (1951).
"Cases of conventional felonies that are 'settled' may well result in strengthening attitudes which favor a general disregard for law and for justice * * *. If conviction on a charge is to be determined in great part by skill of the offender in bargaining with the court or in hiring a lawyer to bargain for him, then our concept of impartial justice based upon facts and rules of evidence becomes meaningless." Newman, Pleading Guilty for Consideration: A Study of Bargain Justice, 46 J Crim LC PS 780, 790 (1956).

Statutes making it a crime not to comply with provisions designed to regulate commercial and business practices, and statutes declaring crimes malum prohibitum are passed on the assumption the prosecutor will enforce them selectively. It is not intended that every person who violates a malum prohibitum statute will, at least upon the first offense, be charged. Even in the case of the common-law crimes, those malum in se, the prosecutor enjoys a large discretion; and this is as it should be. There are many cases where the public interest is best served by charging the offender with X-1, X-2, or even Y rather than X. The prosecutor may properly exercise his discretion and originally charge or later, after receiving more complete information, move the court to eliminate all but a lesser or added offense, if on a total evaluation he believes that to be the more appropriate charge.
The exercise of that discretion, at least prior to charge (See CL 1948, § 767.29 [Stat Ann 1954 Rev § 28.969] requiring leave of court for a nolle prosequi), is generally regarded as unreviewable. Only in rare cases have courts sought to interfere with the prosecutor's exercise of his pre-charging discretion. See Note, Prosecutor's Discretion, 103 U Pa L Rev 1057 (1955); Baker, The Prosecutor-Initiation of Prosecution, 23 J Crim L C 770 (1933); Ferguson, Formulation of Enforcement Policy: An Anatomy of the Prosecutor's Discretion Prior to Accusation, 11 Rutgers L Rev 507 (1957); Kaplan, The Prosecutorial Discretion — A Comment, 60 NW U L Rev 174 (1965); Note, Private Prosecution: A Remedy for District Attorneys' Unwarranted Inaction, 65 Yale L J 209 (1955). Cf. Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 Yale L J 543, 560, 561 (1960).
In Newman v. United States (CA DC, 1967), 382 F.2d 479, the court said the exercise of the prosecutor's charging discretion was not reviewable by the judiciary. In Newman the court held that a defendant's constitutional rights were not denied by a refusal to grant a charge concession allowed a co-defendant.

Miller, Prosecutor Dominance of the Warrant Decision; A Study of Current Practices, Wash U L Q 1, 11 (1964), discusses the practice in several States including Michigan. The article, part of the study for Professor Miller's forthcoming book, Prosecution, in the American Bar Foundation's series on the Administration of Criminal Justice in the United States, traces the evolution of the office of prosecuting attorney in this country and the decline of the magistrate's actual exercise of independent judgment on the question whether a citizen's complaint shall be prosecuted by issuance of an arrest warrant.
In Michigan, except where warrants are requested by members of the department of public safety for traffic or motor vehicle violations, the magistrate may not issue a warrant in any criminal case, whether the offense is or is not cognizable by a justice of the peace, until an order in writing allowing the same is filed with the magistrate and signed by the prosecuting attorney for the county, or unless security for costs shall have been filed with the magistrate. CL 1948, § 764.1 (Stat Ann 1954 Rev § 28.860); CL 1948, § 774.4, as last amended by PA 1965, No 307 (Stat Ann 1968 Cum Supp § 28.1195). Whether the failure to obtain such an order in writing from the prosecutor is "jurisdictional" (see Mr. Justice ADAMS' majority opinion in the 5-3 decision of People v. Holbrook [1964], 373 Mich. 94, and his opinion in People v. Carter [1967], 379 Mich. 24, bearing the signature of 3 justices) or affects only the "lawfulness" of the proceedings (see Mr. Justice O'HARA'S opinion in People v. Carter, supra, p 43) or has some other consequence (see People v. Griswold [1887], 64 Mich. 722, relied on by Mr. Justice BLACK in his dissenting opinion in People v. Holbrook, supra, p 99 [bearing the signatures of 3 justices] and in his concurring opinion in People v. Carter, supra, p 31, and in Mr. Justice KELLY'S concurring opinion in People v. Carter, supra, p 43 [bearing the signatures of 2 justices]), it is clear as a general proposition that the law contemplates prosecutorial control of the decision to charge, and in practice he does control that decision.
However, as to private prosecutions, see Beecher v. Anderson (1881), 45 Mich. 543, 547; CL 1948, § 775.12 (Stat Ann 1954 Rev § 28.1249); compare Jaminet v. The Board of Supervisors of Monroe County (1889), 77 Mich. 245 with Sunderlin v. Board of Supervisors of Ionia County (1899), 119 Mich. 535.

Just as it is wrong for a zoning authority to require a land developer to donate a site for a park ( Gordon v. Village of Wayne [1963], 370 Mich. 329 [requiring the return of money paid to "park fund"]; Ridgemont Development Company v. City of East Detroit (1960), 358 Mich. 387 [setting aside deeds]), or for a municipal contracting officer to refuse to entertain a reasonable and customarily granted request for extension of time in order to invoke a penalty and compensate the governmental authority for other grievances long since foreclosed ( Oswald v. City of El Centro [1930], 211 Cal. 45, 51 [ 292 P. 1073, 1075, 71 ALR 899, 903] [setting aside lease for which there was no consideration "unless it can be said that the performance of official duty is the subject of barter"]), so, too, it is an abuse of discretion for the prosecutor to barter his discretion in exchange for a plea. Compare Worcester v. Commissioner of Internal Revenue (CA 1, 1966), 370 F.2d 713, 718: "To use the power of sentencing to obtain an undertaking to which the court was not entitled was necessarily a misuse of that power."
"An agreement which controls or restricts, or tends or is calculated to control or restrict, the free exercise of a discretion for the public good vested in one acting in a public official capacity is illegal and reprobated by the courts. * * * Public officers * * * will not be permitted to make any agreement among themselves, or with others, by which their public action is to be or may be restrained or embarrassed, or its freedom in any wise affected or impaired." 43 Am Jur, Public Officers, § 295, p 104.

"His position is one involving a duty of impartiality not altogether unlike that of the judge himself. We have had occasion heretofore to refer to this duty in these officers of justice." Meister v. People (1875), 31 Mich. 99, 104.
See, also, Hurd v. People (1872), 25 Mich. 405, 416 ("The prosecuting officer represents the public interest. * * * His object like that of the court, should be simply justice." Emphasis supplied.); Wellar v. People (1874), 30 Mich. 16, 23 ("A public prosecutor is not a plaintiff's attorney, but a sworn minister of justice"); People v. Bemis (1883), 51 Mich. 422, 424 ("We have held that the office of prosecuting attorney was quasi judicial").
"In the United States, the prosecuting attorney as a public official has assumed obligations comparable to those of a trustee." Note, 34 Ind L J 477, 480 (1959).

It cannot be denied that charge concessions, which all agree the prosecutor must be able to confer if he is to induce the presently large number of pleas, are regarded by defendants as having value. If they were not so regarded by defendants, they would not be an inducement. Trying any criminal case costs the State hundreds, and in many cases thousands, of dollars for the services of prosecutors, judges, and other supporting personnel, and, in some cases, defense counsel. Yet were the prosecutor to offer the defendant 1 thin dime for his plea, in contrast with a charge concession which may save the defendant years in prison and the State thousands of dollars, all would agree any guilty plea in acceptance of such offer must be set aside because the defendant waived guaranteed rights for a price, because the plea was involuntary.

See concurring opinion of Justice Douglas, with whom Justice Black agreed, in Speiser v. Randall (1958), 357 U.S. 513, 532, 533 ( 78 S Ct 1332, 1344, 2 L Ed 2d 1460, 1477), stating the presumption of innocence is constitutionally guaranteed. The majority held the burden of proof imposed by statute there under attack violated the due process clause. See, also, Tot v. United States (1943), 319 U.S. 463, 467-470 ( 63 S Ct 1241, 1244-1246, 87 L Ed 1519, 1524-1526), and Dombrowski v. Pfister (1965), 380 U.S. 479 ( 85 S Ct 1116, 14 L Ed 2d 22).

See dissenting opinion of Justice Frankfurter, with whom Justice Black agreed, in Leland v. Oregon (1952), 343 U.S. 790, 802 ( 72 S Ct 1002, 1009, 96 L Ed 1302), stating that the due process clause requires the government to prove guilt beyond a reasonable doubt.

While appeals have been allowed as a matter of right under the new constitution (Const 1963, art 1, § 20), even from guilty pleas, appellate review of a guilty plea cannot touch upon the merits of the case. People v. Zaleski (1965), 375 Mich. 71, 83.

The difference between the possible sentences for statutory rape and indecent liberties was emphasized to the defendant by the trial judge immediately before he asked the defendant Byrd if he were willing to plead guilty to the lesser offense (see colloquy quoted in the majority opinion).

See cases collected at 3 Wigmore on Evidence, §§ 834-836; 2 Wharton's Criminal Evidence (12th ed), § 349; and in footnote 6 to Application of Buccheri (1967), 6 Ariz. App. 196, 201 ( 431 P.2d 91, 99); and annotations: Admissibility of pretrial confessions in criminal case — Supreme Court cases, 1 L Ed 2d 1735, 1742, 4 L Ed 2d 1833, 1834, and dictum in Rogers v. Richmond (1961), 365 U.S. 534, 540 ( 81 S Ct 735, 739, 5 L Ed 2d 760, 766); Wan v. United States (1924), 266 U.S. 1, 14 ( 45 S Ct 1, 3, 69 L Ed 131, 148); Bram v. United States (1897) 168 U.S. 532 ( 18 S Ct 183, 42 L Ed 568) (encouraging an accused person to believe he might obtain mitigation of punishment made his statement inadmissible). In Bram the following language was quoted approvingly by the court: "'A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner.'" ( 168 U.S. 532, 543 [ 18 S Ct 183, 187, 42 L Ed 568, 573].)

A plea of guilty induced by a threat to use physical force would be involuntary and void. Waley v. Johnston (1942), 316 U.S. 0101 ( 62 S Ct 964, 86 L Ed 1302). Although the Waley v. Johnston court indicated that voluntariness of a guilty plea is to be judged by the same standards applied to confessions, those words have not influenced judicial attitudes about plea bargaining. No plea in return for a concession could survive application of the standards applied to confessions. The case law concerning plea bargaining is discussed in part V, infra.

Kercheval v. United States (1927), 274 U.S. 220, 223 ( 47 S Ct 582, 583, 71 L Ed 1009, 1012).

Proponents of plea bargaining cannot have it both ways. They cannot contend negotiations are necessary to obtain pleas and deny that negotiations take place. They cannot insist incentives are necessary to obtain pleas and deny they are offered, and deny such offers are accepted.

"The difference between a 'threat' and a 'promise', in the context at hand is nebulous. The prosecutor may 'threaten' to file other charges or he may 'promise' not to do so. There is little difference between the 2 expressions except in the emotional tone generated in the reader." Application of Buccheri (1967), 6 Ariz. App. 196, 203 ( 431 P.2d 91, 98).

American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty (1967), pp 46, 47, hereafter cited as ABA Standards, Pleas of Guilty; Newman, Conviction: The Determination of Guilt or Innocence Without Trial (1966), p 97; Task Force Report, pp 10, 11.

In People v. Wolcott (1883), 51 Mich. 612, 615, the court held inadmissible a confession obtained "by impressing upon the mind of the respondent that it would be better for him, or he would get off easier if he made a confession. * * * No reliance can be placed upon admissions of guilt so obtained; for the very obvious reason that they are not made because they are true, but because, whether true or false, the accused is led to believe it is for his interest to make them."

People v. Barrows (1959), 358 Mich. 267, 272; see Mr. Justice BRENNAN'S opinion (signed by 4 justices) in People v. Winegar (1968), 380 Mich. 719, for a discussion of earlier authorities; see, also, People v. Stearns (1968), 380 Mich. 704. Compare Hulsey v. United States (CA 5, 1966), 369 F.2d 284; McCoy v. United States (CA DC, 1966), 363 F.2d 306; Maxwell v. United States (CA 9, 1966), 368 F.2d 735: and State, ex rel. Schuler, v. Tahash (1967), 278 Minn. 302 ( 154 N.W.2d 200). (These cases hold a guilty plea should not be accepted where the defendant denies his guilt.)

Enker, Perspectives On Plea Bargaining, Appendix A to Task Force Report, pp 108, 113. A similar argument was considered and rejected in Application of Buccheri, supra, n 20, p 205, as smacking too much of "mercantilism", despite its "inescapable pragmatic validity."

It has been suggested the standards governing admissibility of a confession need not necessarily govern admissibility of a guilty plea because a confession is an admission of fact while a guilty plea expresses the defendant's conclusion following his appraisal, and, in a sense, is a prediction of the law's appraisal, of the facts. Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U of Pa L Rev 865, 884 (1964). In the abstract the argued for distinction can be drawn. But on analysis it is not meaningful.
Implicit in the argument that a different standard should be applied in determining the "voluntariness" of a plea of guilty is the assumption there may be a difference between the underlying facts and the law's appraisal of those facts, that there is a debatable value judgment to be made. However, it is the atypical, not the typical, case that presents for resolution such a debatable value judgment of the underlying facts. In the typical case the disputed issue is what are the facts, not their correct evaluation — in the typical case once the underlying facts are found the verdict follows irresistibly without further analysis. Where the defendant's state of mind is not in dispute, e.g., most offenses against property (armed robbery, breaking and entering, larceny, etc.), there is no real distinction between the underlying facts and the conclusion based thereon. The accused person either did it or he didn't do it. Generally in such a case the defense is not lack of requisite mens rea but rather noncommission of the acts alleged.
Only where the defendant's participation in the incident has been established, but the defendant nevertheless denies wrongful intent, is there any need to make a value judgment of the underlying facts. For example, in a murder case where it has been established the defendant killed the victim, the defendant's state of mind is generally the disputed critical issue in determining guilt or degree of guilt.
The argument that a different standard can properly be applied in determining the "voluntariness" of a plea of guilty, based as it is on the atypical factual hypothesis rather than the typical one, does not in any event support plea bargaining in general.
In the atypical case where the correct evaluation of the underlying facts is debatable, as a necessary corollary to the hypothesis that the issue is debatable it must be recognized that the accused person may be innocent, for if the accused person might not be innocent there would be no need for an appraisal, the issue would not be debatable. If guilt is debatable, if the defendant may be innocent, it is especially important to determine that question freely, without the kind of extraneous pressure inherent in the plea bargaining system.
Extra-judicial confessions of guilt, as distinguished from confessions of fact, have never been reviewed by a lesser standard on that account. Nor has any policy reason been advanced why a less stringent standard should govern the validity of a guilty plea. It has even been suggested a more stringent standard should be applied in determining the validity of a plea of guilty. United States v. Gilligan (CA 2, 1966), 363 F.2d 961, 966: "The entry of a plea of guilty demands even more stringent standards than are required for confessions."
On principle it can be argued that the more debatable the defendant's guilt the less justification for allowing him to make his own final evaluation. Conviction of an accused person can be viewed as a determination that society wishes to sanction particular conduct. Conviction is costly to society. One who may theretofore have been a productive member of society, if sent to prison, becomes nonproductive or marginally productive. Both he and his family are scarred, and their support to some extent becomes a charge on society. Arguably, one should no more be allowed to convict himself than to acquit himself.
If such defendant-appraisals in debatable guilt cases are to be substituted for society-appraisals, the process by which that is done should be entirely different from the plea bargaining process as we know it today. At the very least there should be a judicial hearing at which all the evidence is considered, so that a judge can review the defendant's evaluation and satisfy himself that the defendant's evaluation is one which the law is likely to make. In this connection see the description of Wisconsin's "little trial" in Newman, Conviction: The Determination of Guilt or Innocence Without Trial, pp 19, 20.
An opinion of our Court suggests that where the guilt of the accused is debatable his plea must be rejected. See People v. Richard E. Johnson (1967), 8 Mich. App. 204, 208, where "the defendant appeared to be uncertain as to whether he intentionally or accidentally pushed the deceased to his death." The Court declared (p 210) that "the equivocal nature of the defendant's answers should have led the trial court to conclude that a question of fact had been presented and accordingly reject the plea of guilty." But see Griffin v. United States (CA DC, 1968) 405 F.2d 1378 . See, also, footnote 23. Compare People v. Collins (1968), 380 Mich. 131, discussed, infra, footnote 36, and McCoy v. United States (CA DC, 1966), 363 F.2d 306.

See quotation from Bram v. United States, supra, footnote 16.

"The system usually operates in an informal, invisible manner. There is ordinarily no formal recognition that the defendant has been offered an inducement to plead guilty. Although the participants and frequently the judge know that negotiation has taken place, the prosecutor and defendant must ordinarily go through a courtroom ritual in which they deny that the guilty plea is the result of any threat or promise." Task Force Report, p 9. Similarly, see ABA Standards, Pleas of Guilty, p 61.

The following questions and answers were taken down when the defendant Byrd pleaded guilty:
"The Court: Has anyone told you you had to plead guilty?
"The defendant: No.
"The Court: Has anyone promised you would get off easy if you plead guilty?
"The defendant: No.
"The Court: You plead guilty because you are guilty?
"The defendant: Yes, sir.
"The Court: You have had an attorney of your own choice?
"The defendant: Yes.
"The Court: You talked the matter over with him before you offered the plea of guilty?
"The defendant: Yes.
"The Court: And the court has advised you [of] the possible penalties. You also understand if I do accept your plea of guilty to the second count of indecent liberties, you cannot later change it or withdraw it as you have made a confession of your guilt in open court?
"The defendant: Yes."

There has been a great deal of discussion of late concerning the form of the questions to be put by the court to the accused in accordance with GCR 1963, 785.3 and CL 1948, § 768.35 (Stat Ann 1954 Rev § 28.1058). The questioning serves a useful purpose, but it provides no assurance whatsoever regarding the "truth" of a negotiated guilty plea, and negotiated pleas are the bulk of the pleas. (see footnote 2) The defendant offering a negotiated guilty plea must, if he desires the benefit of the negotiation, answer according to a prearranged script. If the defendant is to profit from a negotiated plea, he must give all the "right" answers at the time the plea is accepted. If after acceptance of his plea he seeks to withdraw it, he must prove with certainty not only that a promise was made and unkept, but also that he was lying before when he responded that no promise had been made, and now is telling the truth in asserting that, in fact, an unkept promise (see part V) was made.
"If the defendant is disappointed, he may move to withdraw his plea, but there is no assurance that the motion will be granted, particularly since at the time he tendered his guilty plea, he probably denied the very negotiations he now alleges." Task Force Report, p 10.
This case will illustrate the quoted statement from the Task Force Report. Despite the fact that the trial judge himself stated the practice is not to permit defendants or their counsel to acknowledge plea discussions or agreements, the trial judge asked the defendant and members of his family, who testified in his behalf at the hearing on the voluntariness of his plea and who were present in the courtroom when he pleaded guilty, why he denied any promises were made to him and gave details of an offense of which he now claims innocence.

The ABA and the President's commission recommend that the negotiated guilty plea process be brought into the open and put on the record. ABA Standards, Pleas of Guilty, pp 29, 30; Task Force Report, pp 12, 13.

See footnote 23.

The "trial" of this case began with brief testimony from a policewoman concerning the details of the offense which she did not witness. The defendant was then asked by the judge whether he wished to plead guilty to the lesser offense and, when he answered affirmatively, was asked to describe what he did. Thereupon he gave a brief description. Later he recited the details to the probation officer who was preparing a pre-sentence report. The trial judge in this case took care to assure a factual basis existed for the plea. Not only was there the policewoman's recital of the events as related to her by the girl, but there were also the defendant's admissions in open court. However, just as the defendant is required to deny any promise has been made to him although charge concessions have been promised, he must, if he wishes the benefit of the negotiated concession, also be prepared to acknowledge and, indeed, sometimes testify in detail about the commission of the reduced offense.

See footnote 23 and People v. Richard E. Johnson (1967), 8 Mich. App. 204, discussed supra, footnote 25.

For example, if in this case the defendant had related facts clearly sufficient to constitute statutory rape and the prosecutor nevertheless pressed only an indecent liberties charge, would the trial judge have acquiesced? If he had acquiesced simply because the defendant and the prosecutor had made an agreement, would the public acquiesce?

However, there is reason to believe the plea bargaining system as a whole would organize around a requirement of full disclosure of the negotiated arrangements on the record. See Weintraub and Tough, Lesser Pleas Considered, 32 J Crim L C 506 (1942), showing how the plea bargaining system readily adapted to a New York statute requiring from the prosecutor a statement in writing of his reasons for recommending acceptance of a particular plea. The requirement is still part of New York law although the prosecutor may now make an oral explanation in open court. See Code of Cr Proc § 342-a (McKinney 1967 Cum Ann pocket part), as amended.

However, the Michigan Supreme Court recently held a conviction based on a plea of guilty following bargaining may not be successfully assailed on the ground that the defendant was guilty of either the greater offense or no crime at all. People v. Collins (1968), 380 Mich. 131; see, also, ABA Standards, Pleas of Guilty, pp 32-34.

"Allowing the defendant to recount the attending events that describe his involvement in the offense charged is the best procedure by which the court decides to accept or refuse the plea of guilty. However, this Court is cognizant of the tendency of defendants to hold back facts when pleading guilty or when a plea to a lesser offense is being proffered, to give just sufficient facts to make up the elements of the lesser offense. When the defendant's testimony discloses that he is not truthful or has failed to reveal all the facts, the court should refuse to accept the plea of guilty." People v. Richard E. Johnson, p 210, supra, footnote 33.

Task Force Report, p 13.

Dash, Cracks in the Foundation of Criminal Justice, 46 Ill L Rev 385, 392 (1951); Polstein, How to "Settle" a Criminal Case, 8 The Practical Lawyer 35 (1962); Newman, Pleading Guilty for Considerations: A Study of Bargain Justice, 46 J Crim L, C P S 780 (1956); Comment, Criminal Law — Plea of Guilty — Voluntariness of Plea of Guilty Made in Response to Promise of Leniency, 35 N.Y.U L Rev 284 (1960).
Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U Pa L Rev 865 (1964).

Newman, Conviction: The Determination of Guilt or Innocence Without Trial (1966); Law Enforcement in the Metropolis (1967), p 132.

The various opinions in Shelton v. United States [(CA 5, 1957), 242 F.2d 101, reversed 246 F.2d 571 ( en banc), reversed per curiam "Upon the consideration of the entire record and confession of error by the solicitor general that the plea of guilty may have been improperly obtained" (1958), 356 U.S. 26 ( 78 S Ct 563, 2 L Ed 2d 579)] express the conflicting arguments concerning the propriety of plea bargaining, but the majority opinion on the en banc rehearing in Shelton clearly represents the view now prevailing.
The United States Court of Appeals for the Sixth Circuit has said: "It is clear, of course, that a plea of guilty induced by a promise of lenient treatment is an involuntary plea and hence void. Shelton v. United States, 356 U.S. 26, 78 S Ct 563, 2 L Ed 2d 579 (1958), reversing 5 Cir, 246 F.2d 571." Scott v. United States (CA 6, 1965), 349 F.2d 641 (alleged unkept promise by a state sheriff acquiesced in by Federal officers; evidentiary hearing ordered by 6th circuit).
For a recent collection of authorities, see Commonwealth v. Maroney (1966), 423 Pa. 337 ( 223 A.2d 699), upholding a bargained plea in a murder case in a state where capital punishment may be imposed. Similarly, see Gilmore v. California (CA 9, 1966), 364 F.2d 916, 918. However, see Application of Buccheri (1967), 6 Ariz. App. 196 ( 431 P.2d 91), discussed infra, n 46.
The ABA Standards, Pleas of Guilty, p 60 et seq. and Task Force Report, pp 9, 10, both state the prevailing view is that plea bargaining is sound.
Contrast: Griffin v. State (1913), 12 Ga. App. 615 ( 77 S.E. 1030, 1084): "The law favors a trial on the merits." Quoted approvingly in State v. Cochran (1933), 332 Mo 742, 745 ( 60 S.W.2d 1, 2).

Task Force Report, p 10.

Task Force Report, p 13.

When one looks beyond this case of Byrd to the overall caseload, and compares the overall caseload with the prosecutorial and judicial resources that have been made available for adjudication of the countless criminal cases, one sees that a very real "necessity" does exist for what was done in this case. As previously stated, it would be impossible with present resources to try even a substantial percentage of felony cases, let alone misdemeanors. It is the necessity of avoiding trials which "justifies" plea bargaining. That, however, is not the kind of necessity which the Supreme Court of the United States has recognized or which any court should recognize as justification for undercutting fundamental, guaranteed rights.
If effective law enforcement could not be organized without plea bargaining, then the kind of necessity spoken of in Jackson would exist. However, the only obstacle which prevents organizing a system of justice without plea bargaining is lack of funds, i.e., the failure to allocate adequate funds for that purpose. If lack of funds is ever held to justify undercutting fundamental, guaranteed rights, then there is no right so sacred that it cannot be destroyed by the simple expedient of denying funds for its protection. If that is not to happen, then, as a matter of unyielding principle, we must not in the name of economy sacrifice fundamental, if you will, necessary, rights.
The Federal courts are faced with much the same docket problems as the State courts. Yet it is clear the procedure outlined in Jackson would not have been sustained had the solicitor general argued it expedites the business of the Federal courts by eliminating "unnecessary trials."
The decisions which allow the purchase of informer testimony can be explained on grounds of necessity, the same kind of "exigencies" which excused the warrantless search in Warden, Maryland Penitentiary, v. Hayden (1967) 387 U.S. 294, 298, 310 ( 87 S Ct 1642, 1645, 1651, 18 L Ed 2d 782, 787, 794). As to concessions to informers, see e.g., United States v. Hoffa (1966), 385 U.S. 293 ( 87 S Ct 408, 17 L Ed 2d 374), rehearing denied 386 U.S. 940, 951 ( 87 S Ct 970, 17 L Ed 2d 880); however, see, also Mr. Chief Justice Warren's dissent (p 313) recognizing the need for limitations regarding the use of purchased testimony. But the necessity of effective law enforcement has never been held by the Supreme Courts of either this State or the United States to justify trading with the accused person himself. The same policy which makes inadmissible a purchased confession precludes conviction upon a purchased plea of guilty.

Compare Spevack v. Klein (1967), 385 U.S. 511, ( 87 S Ct 625, 17 L Ed 2d 574), holding that one cannot be penalized for exercise of the right against self-incrimination, and Garrity v. New Jersey (1967), 385 U.S. 493 ( 87 S Ct 616, 17 L Ed 2d 562), holding ineffective waivers of that right obtained by threat of imposition of a penalty. In both these case, the individuals' means of livelihood was threatened. The penalty facing the plea-bargaining defendant who is weighing a plea of guilty against exercise of his constitutional rights to a jury trial, etc., is a potentially longer sentence or disallowance of probation, an imposition likely to be at least as severe or more severe than loss of one's livelihood.
See, also, Green v. United States (1957), 355 U.S. 184 ( 78 S Ct 221, 2 L Ed 2d 199, 61 ALR2d 1119), where, in holding that the Federal double jeopardy provision prevents retrial for an offense greater than the lesser included offense which constituted the basis of a prior, reversed conviction, the Court declared that the defendant need not (pp 193, 194): "barter his constitutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from an erroneous conviction of another offense for which he has been sentenced to 5 to 20 years' imprisonment. * * * The law should not, and in our judgment does not, place the defendant in such an incredible dilemma. Conditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy." See, also, opinion of Justice Fortas, with whom Justice Douglas joined, dissenting and opinion of Justice Brennan concurring in United States v. Ewell (1966), 383 U.S. 116, 125, 126 ( 86 S Ct 773, 779, 15 L Ed 2d 627, 633, 634), condemning overcharging on reindictment following vacation of convictions because apparently designed to chill exercise of post-conviction remedies.
In a number of cases the courts have held recently a harsher sentence may not be imposed upon a successful appellant following his unsuccessful second trial, because to do so would impermissibly chill the right of appeal. See People v. Mulier (1968), 12 Mich. App. 28, where Chief Judge LESINSKI comprehensively reviewed the case law in other jurisdictions both favoring and opposing this view.
In Michigan the defendant has a constitutional right to appeal. It has frequently been said, however, that due process does not require appellate review. 16A CJS, Constitutional Law, § 594; 16 Am Jur 2d, Constitutional Law, § 584. The decisions prohibiting harsher penalties following an unsuccessful retrial in those jurisdictions (see Green v. United States, supra, and cases cited in People v. Mulier, supra) where defendant's right of appeal is provided for statutorily, not constitutionally, thus recognize that the State may not unnecessarily discourage exercise of non-constitutional, fundamental guaranteed rights.

Application of Buccheri (1967), 6 Ariz. App. 196 ( 431 P.2d 91). In that case. Arizonia's intermediate appellate court reviewed the conflicting opinions in Shelton (see footnote 41) and concluded that it would (p 205): "take the 'high road', the guideposts of which may be found in the dissenting opinion in the last rendition of the fifth circuit in the oscillating case of Shelton, which opinion would appear to be that favored by the Supreme Court of the United States. See, also, Application of Parham (1967), 6 Ariz. App. 191 ( 431 P.2d 86), and Scott v. United States (CA 6, 1965), 349 F.2d 641, discussed in footnote 41.
See Heideman v. United States (CA 8, 1960), 281 F.2d 805, 809, stating that an analogy can be drawn to cases concerning the voluntariness of confessions and that a hearing should be held on defendants' claims that their pleas of guilty were induced by representations of the prosecutor; similarly, see Shupe v. Sigler (DC Neb, 1964), 230 F. Supp. 601.
In People v. Merhige (1920), 212 Mich. 601, 612, the Court declared that the "applicable rule" was that a guilty plea "'should not be induced by fear, misapprehension, persuasion, promises, inadvertence, or ignorance.'" That language was relied on by our Court in People v. Hoerle (1966), 3 Mich. App. 693, where the original charge was second-degree murder. The juvenile division waived jurisdiction and the defendant was arraigned in recorder's court on first-degree murder; however, subsequently he was permitted to plead guilty to second-degree murder. Our Court found both charging first-degree murder and the acceptance of a guilty plea under the circumstances to have been error, declaring (p 699): "It cannot be said that defendant's plea of guilty to second-degree murder was free of misapprehension and fear of an improper conviction on the charge of first-degree murder. Such fear and misapprehension is sufficient to render the plea of guilty to second-degree murder involuntary."
"It is well settled in this State that a conviction on a plea of guilty, involuntarily rendered, presents grounds for a new trial."

See Rogers v. Richmond (1961), 365 U.S. 534 ( 81 S Ct 735, 5 L Ed 2d 760).

"The practice of reducing most charges to obtain pleas of guilty results in judges' tending to give just as much attention to original charges as to the ones pleaded to. In consequence, the reduction agreement does not always result in the imposition of a minimum sentence lower than that which would have been imposed upon conviction for the original offense." Law Enforcement in the Metropolis (1967). p 156. As a general proposition in Michigan the court controls only the minimum sentence under our indeterminate sentence law.
Compare Dillon v. United States (CA 9, 1962), 307 F.2d 445, 450; Smith v. O'Grady (1941), 312 U.S. 329, 334 ( 61 S Ct 572, 574, 85 L Ed 859, 862); Reddick v. State (Fla App, 1966), 190 So.2d 340; United States v. Lester (CA 2, 1957), 247 F.2d 496, 501; State v. Cochran (1933), 332 Mo 742 ( 60 S.W.2d 1, 2).

"Even when there have been no explicit negotiations, defendants relying on prevailing practices often act on the justifiable assumption that those who plead guilty will be sentenced more leniently." Task Force Report, p 9.

See Leahey v. Farrell (1949), 362 Pa. 52 ( 66 A.2d 577); Noble County Council v. State (1955) 234 Ind. 172 ( 125 N.E.2d 709).

See Schaefer, The Control of "Sunbursts": Techniques of Prospective Overruling, 42 N.Y.U L Rev 631 (1967). The author is a justice of the supreme court of Illinois.

Bargaining with those facing recidivist charges and charges car rying minimum sentences could also be limited in view of the special pressures on defendants in such cases. For case authority on bargaining with those facing recidivist charges, see footnote 8 of People v. Hollman (1968), 12 Mich. App. 231.

The adoption of the foregoing proposal would not prevent individualization of justice by charge reduction. However, should any rule be adopted prohibiting charge concessions in respect to particular offenses in exchange for guilty pleas, it would be necessary, in order to make the rule effective, to provide that where there has been a charge reduction in respect to an offense for which bargaining is forbidden the offender will not be permitted to plead guilty to the reduced charge and must stand trial thereon.

See Reik, The Compulsion to Confess, republished by Farrar Straus Cudahy (1959), p 175, et seq.

See Allen, the Berderland of Criminal Justice, University of Chicago Press (1964).

Where the defendant's lawyer honestly tells him he may expect a lighter sentence if he pleads guilty but does not imply this has been discussed or arranged with a judge or some other official (such as the prosecutor) who may influence the judge's decision, it is generally held the defendant may not have his plea set aside because the lawyer's expectation proves wrong. Meredith v. United States (CA 4, 1953), 208 F.2d 680; Floyd v. United States (CA 5, 1958), 260 F.2d 910; United States v. Berry (CA 7, 1962), 309 F.2d 311; Dewey v. United States (CA 8, 1959), 268 F.2d 124; Edwards v. United States (CA DC, 1958), 256 F.2d 707; State v. Andrews (1963), 79 N.J. Super. 17 ( 190 A.2d 201); Jacobs v. Warden of the Maryland Penitentiary (1963), 232 Md. 627 ( 192 A.2d 786). But see Wilson v. Rose (CA 9, 1966), 366 F.2d 611 .
However, it has been said that the plea should be set aside where it is established that the plea followed a mistaken statement by the defendant's attorney that a concession had been arranged with the judge or prosecutor, without regard to whether the judge or prosecutor led the attorney to make the statement. Gilmore v. People (CA 9, 1966), 364 F.2d 916; People v. Walston (1967), 38 Ill.2d 39 ( 230 N.E.2d 233); United States v. Banmiller (CA 3, 1963), 325 F.2d 514, discussed in footnote 57; Davidson v. State (1968), ___ Idaho ___ ( 437 P.2d 620, 623) dissenting opinion of Justice McFadden, the majority disposing of the case on the ground that the petition alleged only advice of defense counsel as to the anticipated sentence, and did not allege that counsel advised that an agreement regarding sentence had been entered into with the prosecutor or judge; United States v. Mancusi (ED NY, 1967), 275 F. Supp. 508, 517. Contrast: People v. Gilbert (1944), 25 Cal.2d 422, 443 ( 154 P.2d 657, 668); Commonwealth v. Scoleri (1964), 415 Pa. 218 ( 202 A.2d 521).
Admittedly, the judicial statements in Michigan are not entirely in accord with the view expressed here. See People v. Walls (1966), 3 Mich. App. 279 (defendant claimed his attorney's alleged promise of probation was agreed to by an assistant prosecuting attorney); People v. Vasquez (1942), 303 Mich. 340 (alleged promise by sheriff); People v. Goldman (1929), 245 Mich. 578 (alleged statements by defendant's attorney and an assistant prosecutor as to defendant's "probable" sentence). On the other hand, see People v. Woloott (1883), 51 Mich. 612, where the "intimations" were by police officers.
In all events, in this case the promise, if made, was totally false. The trial judge declared there had been no discussions with him. To apply to a knowingly false statement by a lawyer the same standard used where the lawyer honestly states his best judgment and makes no claim the prosecutor or the judge has made a commitment or given an intimation in the matter would be to insulate from attack a fraud on the defendant client.
Query, whether the rule expressed in the cases cited in the first paragraph of this footnote can properly be applied today. If it were shown, as appears to be the case in most large cities (see ABA Standards, Pleas of Guilty, pp 3, 4, 37, 38; Task Force Report, p 11; Law Enforcement in the Metropolis, p 156; Note, The Influence of the Defendant's Plea on Judicial Determination of Sentence, 66 Yale L J 204 [1956]), that it is widely believed by prosecutors, defense counsel and the general public that those who plead guilty will be dealt with more leniently than those who do not, if many judges in fact so sentence (see authorities just cited), or if it is shown that the sentencing judge follows such a practice and that fact has become well known ( e.g., the sentencing judge in United States v. Wiley (CA 7, 1959), 267 F.2d 453; United States v. Wiley (CA 7, 1960), 278 F.2d 500, United States v. Wiley (ND Ill, 1960), 184 F. Supp. 679), then entirely apart from whether it is or is not proper for a trial judge to grant leniency to guilty pleaders and deal more harshly with those convicted following a trial; don't we have something more before us than a misguided attorney's prediction? On such a factual showing would we not then be faced with an official policy of encouraging defendants to believe they have something to gain by pleading guilty, one for which prosecutor and judge as well as defense counsel must share responsibility? If the judiciary as a whole does not by word and conduct do what it can to eliminate that belief can it be heard to say that defense counsel alone is responsible for the fact that belief is held and disseminated? And if the tacit promise implicit in that officially encouraged belief is not fulfilled, is it any less a breach of promise because the judge did not expressly corroborate the attorney's "mere prediction" the judge would deal more leniently with the offender if he pleads guilty? There can only be one answer: all those who participate must share both responsibility and accountability. Compare Reddick v. State (Fla App, 1966), 190 So.2d 340; United States v. Lester (CA 2, 1957), 247 F.2d 496, 501; State v. Cochran (1933), 332 Mo 742 ( 60 S.W.2d 1).
There is no valid analogy between an attorney's prediction to his client of how a judge may decide a question of law or fact or exercise discretion in an ordinary case (which prediction, if erroneous, should not entitle the client to relief) and a prediction by an attorney to his client based on the assumption the judge has adopted a covert policy of taking into consideration extraneous impermissible elements in exercising discretion (which, in my opinion, should entitle the client to relief if for no other reason than that the judge has adopted such a policy). That it is not permissible for a trial judge upon sentencing to count against a defendant the fact he was convicted following a trial, and did not plead guilty, see footnote 4 of People v. Earegood (1968), 12 Mich. App. 256.

In Searles v. Christensen (1894), 5 S.D. 650 ( 60 N.W. 29), the lawyer knowingly misinformed his client, the defendant, that the trial date had been postponed; a judgment by default against defendant was set aside because of the defense attorney's fraud upon the defendant, although it was not claimed the plaintiff participated in the fraud. Similarly, see E. H.T. Anthony Company v. Karbach (1902), 64 Neb. 509 ( 90 N.W. 243); 30A Am Jur, Judgments, §§ 657, 658; 49 CJS, Judgments, §§ 365, 366, 368; GCR 1963, 528.3, 785.1(1).
In United States, ex rel. Wilkins, v. Banmiller (CA 3, 1963), 325 F.2d 514, three dissenting judges stated that a plea of guilty should be set aside where the defendant's attorney made false statements to the defendant concerning the evidence against him and concerning alleged arrangements with the district attorney and the court for the defendant to receive a light sentence should he plead guilty (p 525):
"Wilkins' counsel shirked his duty and lied to him as to essentials of his case in order to get him to plead guilty. Both effective and honest assistance were, therefore, lacking at the relator's trial. The trial was in direct contravention of traditional notions of fairness. The state must bear the onus for this situation. Its responsibility does not necessarily rest upon fault. Rather its responsibility is a broader, vicarious accountability for that which transpires in criminal proceedings conducted by it. When the State secures a conviction, that conviction must rest upon a solid foundation. The test is whether or not the defendant received a fair hearing. That test cannot be deemed to have been met under the circumstances presented by the case at bar."
Four judges did not reach the question because the defendant in their view had not proceeded properly in testing his State court conviction in the United States district court.
Compare Poe v. United States (D DC, 1964), 233 F. Supp. 173, affirmed 122 App DC 163 ([CA DC, 1965] 352 F.2d 639), and Commonwealth, ex rel. McKenna, v. Cavell (1966) 423 Pa. 387, 393 ( 224 A.2d 616, 619), where convictions (after trial in Poe, upon plea of guilty in McKenna) were set aside, it appearing the defendant had been misinformed by his lawyer as to the consequences of his taking the stand. However, most cases deny relief where the claim is based on alleged trial counsel error. See Waltz, Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases, 59 NW U L Rev 289 (1964).
Relief from default judgments has been allowed in civil cases where the lawyer acted negligently or mistakenly and his client, the default judgment debtor, acted in good faith. Taylor v. Pope (1890) 106 N.C. 267 ( 11 S.E. 257); MacCall v. Looney (1903), 4 Neb (unoff.) 715 (96 N.W. 238); Jeffords v. Young (1929), 98 Cal.App. 400 ( 277 P. 163); Baskin v. Aetna Life Insurance Company (1935), 190 Ark. 448 ( 79 S.W.2d 724); Thoreson v. Central States Electric Company (1939), 225 Iowa 1406 ( 283 N.W. 253); Andring v. Andring (1965), 3 Ohio App.2d 417 ( 211 N.E.2d 59).
For a general discussion and authorities going both ways, see Notes: Attorney and Client: Negligence or Misconduct of Attorney: New Trial, 14 Corn L Q 469 (1929); Attorney and Client — Criminal Law — New Trial Because of Incompetency of Counsel, 14 Iowa L Rev 476 (1929).

It would tend to prevent cases of this kind if, before accepting a negotiated plea, the trial judge would require the prosecutor and defense counsel to state whether any sentence concessions have been promised and ask them to put on the record the history of any negotiations for charge or sentence concessions, and would ask the defendant whether any sentence concessions have been promised. Such inquiry by the trial judge is recommended by both the ABA and the President's commission (see footnote 30). That, of course, will not be a guarantee of trustworthiness, because it is still possible a defendant could be led to believe sentence concessions have been agreed upon which may only be obtained covertly and which he and counsel must deny in order to enjoy the benefit of the deal. But it would tend to eliminate problems of this kind.

A question not decided by the majority in Jackson v. Denno (1964), 378 U.S. 368 ( 84 S Ct 1774, 12 L Ed 2d 908, 1 ALR3d 1205), or by its Michigan descendant, People v. Walker (on rehearing) (1965), 374 Mich. 331, is what standard governs the decision of the judge in his separate hearing as to voluntariness of a confession. See Justice Black's dissent in Jackson v. Denno, supra, p 401. In Bram v. United States (1897), 168 U.S. 532, 565 ( 18 S Ct 183, 195, 42 L Ed 568, 581), the court declared that "any doubt as to whether the confession was voluntary must be determined in favor of the accused". Holding that the judge must be satisfied of the voluntariness of a confession beyond a reasonable doubt before he submits it to the jury, are United States v. Inman (CA 4, 1965), 352 F.2d 954; State v. Keiser (1966), 274 Minn. 265, 271 ( 143 N.W.2d 75, 79); People v. Huntley (1965), 15 N.Y.2d 72, 78 ( 255 N.Y.S.2d 838, 843, 204 N.E.2d 179, 183); and State v. Ragsdale (1966), 249 La. 420 ( 187 So.2d 427), certiorari denied (1967), 385 U.S. 1029 ( 87 S Ct 758, 17 L Ed 2d 676); Clifton v. United States (CA DC, 1967), 371 F.2d 354, certiorari denied (1967), 386 U.S. 995 ( 87 S Ct 1312, 18 L Ed 2d 341), 1 judge concurring in the result, but dissenting on this issue, disagreed with United States v. Inman, supra, and held that the judge need not be satisfied beyond a reasonable doubt, but may use traditional admissibility criteria in deciding whether to submit the confession to a jury.
For a table of authorities dealing with the question, covering 19 States and 87 cases, see State v. Keiser, supra, appendix A, p 272. See, also, State v. Yough (1967), 49 N.J. 587, 601 ( 231 A.2d 598, 604, 605), where the court suggested there exists a "narrow zone" of cases in which the reasonable doubt standard should apply not because of constitutional necessity, but because "in the overall the sound administration of justice may perhaps be better served."
The reasonable doubt standard was recently adopted by the United States Supreme Court for the purpose of determining whether a State court's infringement of an accused person's constitutional right at trial was harmless error. Chapman v. California (1967), 386 U.S. 18 ( 87 S Ct 824, 17 L Ed 2d 705), rehearing denied (1967) 386 U.S. 987 ( 87 S Ct 1283, 18 L Ed 2d 241). The same standard was also adopted by our Supreme Court in an opinion signed by 4 justices for the purpose of determining whether nonconstitutional error was harmless. People v. Liggett (1967), 378 Mich. 706, 716.

The trial judge in this case expressed concern that were he to find for the defendant he would necessarily have to refer the matter to the State Bar for action against the lawyer who represented the defendant at the time he pleaded guilty. The present rule concerning burden of proof places both the judge and the defendant in an unfair position.
Upon a careful examination of the remand hearing transcript, I am left with a reasonable doubt. Four members of defendant's family, none of whose credibility was attacked, corroborated his claim that he repeatedly asserted his innocence to his lawyer, who repeatedly urged him to plead guilty to the reduced charge rather than risk a life sentence, adding that defendant was assured probation if he pleaded guilty. I did not see the witnesses; if I had I might possibly take a different view. The lawyer, the defendant, and defense witnesses were all interested witnesses. I acknowledge that we do not simply count witnesses and that questions of credibility are best resolved by the trial judge who saw the witnesses.