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Judicial Skepticism Mounts Over the Use and Reach of Appellate Waivers
A defendant who pleads guilty is usually required to waive a host of constitutional and statutory rights, such as the right to a jury trial, the right to confront and cross-examine adverse witnesses, the right to testify and present evidence. Fed. R. Crim. P. 11(b). By necessity, a defendant who wishes to gain the potential sentencing benefits of pleading guilty must waive these trial rights. However, many defendants are also required to waive their right to appeal in order to receive a favorable plea agreement with the government. In federal court, these agreements typically require the waiver of the right to appeal when the sentence is within or below an agreed-upon range. In addition, only with the consent of the government and the court may a defendant enter a conditional plea in federal court and thereby reserve the right to appeal an adverse determination of a pretrial motion (such as a suppression motion or a motion in limine). Fed. R. Crim. P. 11(a)(2).
Given that the overwhelming majority of criminal cases are resolved by guilty plea, the frequent use of appellate waivers limits the ability of a defendant to get a “second look” for his case. This shifts decision-making power from the courts to the prosecutors, who can decide when to insist on an appellate waiver. Appellate waivers also inhibit the development of the law by cutting off the flow of cases to the appellate courts. Without fewer appeals, there are fewer appellate decisions in areas ranging from search-and-seizure law to sentencing procedure.
In recent years, there has been some pushback by appellate courts against the broad use of waivers. To be sure, one or two feathers do not make a bird, and appellate waivers are still being enforced in the vast majority of cases. But it does seem as if a trend is developing in this area, as reflected by the cases discussed in this article. Here are some themes from these recent decisions that defense counsel might consider when negotiating guilty pleas and deciding whether or not to appeal notwithstanding the existence of an appellate waiver.
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