An idle thought on the Boykin canvass

Much as been written and said about Boykin v. Alabama since Justice Douglas wrote the decision in 1969. At best, it is a necessary safeguard to ensure that guily pleas, the bulk of the resolutions in the criminal justice system, are made voluntarily. At worst, it is a prophylactic.

A defendant entering a guilty plea waives several fundamental constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243 (1969). “We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.” (Internal quotation marks omitted.) State v. Andrews, supra, 253 Conn. 503. To satisfy that requirement, a defendant must be fully aware of the direct consequences of his or her plea. See Brady v. United States, 397 U.S. 742, 755 (1970). Direct consequences are generally defined as consequences that are “definite, immediate and [that have] largely automatic effect[s] on the range of the defendant’s punishment.” Cuthrell v. Director, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005 (1973).

State v. Groppi. The Boykin canvas is limited to three Constitutional aspects: First, is the privilege against compulsory self-incrimination.. . [s]econd, is the right to trial by jury… [t]hird, is the right to confront one’s accusers.’ Boykin v. Alabama, [supra].

In fact, the Boykin canvass is now part of most state statutes or rules of court. Here, in CT, it is codified in Conn. Prac. Bk. S. 39-19, which provides:

The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:

  1. The nature of the charge to which the plea is offered;
  2. The mandatory minimum sentence, if any;
  3. The fact that the statute for the particular offense does not permit the sentence to be suspended;
  4. The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
  5. The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.

But even there, strict compliance is not required:

While the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of the three core constitutional rights delineated in Boykin, it does not require that the trial court go beyond these “constitutional minima.” United States v. Dayton, 604 F.2d 931, 935 n.2 (5th Cir. 1979) (en banc). A defendant can voluntarily and understandingly waive these rights without literal compliance with the prophylactic safeguards of Practice Book ยงยง 711 and 712. Therefore, although the Practice Book provisions were designed to reflect the principles embodied in Boykin; State v. Godek, 182 Conn. 353, 357 (1980), cert. denied, 450 U.S. 1031 (1981); Blue v. Robinson, 173 Conn. 360, 373 (1977); precise compliance with the provisions is not constitutionally required. Thus, our analysis will focus on whether the federal constitutional principles of Boykin were satisfied rather than on meticulous compliance with the provisions of the Practice Book.

State v. Badgett. But enough with the primer and onto my idle thought. Here, as part of the plea canvass, a judge will routinely ask defendants the following question: “Are you satisfied with your attorney’s representation of you?” This question, to me, is distinctly different from the practice book requirement that the defendant be aware that he is entitled to the effective assistance of counsel. The latter is directed at informing the defendant that if he proceeds to trial, he will have available an attorney to conduct the trial for him.

The question of satisfaction, on the other hand, seems to have no basis in any Constitutional requirement (at least none that I can see on this idle Friday afternoon).

You can imagine the gamut of responses to this question: A perfunctory “yes”; a begruding or resigned “yes”; a hesitant “yes”; some hemming and hawing followed by “yes” and the rare “no”.

Most defendants view this as asking whether they are satisfied with the outcome of the case, rather than the performance of the specific attorney (in fact, some judges will follow up with that clarifying statement, if they notice any hesitation in the defendant). Their thought process is obvious: “I’m not thrilled with this deal, so how can I be satisfied that my attorney did the best job?”

Which brings me to my question(s): What, exactly, is the point of this question? It certainly cannot be to prevent any future habeas corpus litigation alleging ineffective assistance of counsel. The administration of a Boykin canvass hardly precludes future arguments that the plea was not voluntary. I’ve seen prosecutors attempt to question habeas petitioners whether they answered the question in question in the affirmative, as if it were evidence of a lack of IAC. But they are not serious arguments and don’t hold much weight in the eyes of even the most pro-state judges.

Everyone realizes that most defendants are aware of the dance. They know the questions to be asked and they know the pat responses. Some are truly satisfied with the sentences they are receiving; most are resigned to them. After all, who wants to go to jail?

So, why then, do we ask this question at all? Is it habit? Is it really designed to truly determine if the plea is voluntary? If that is the case, there would be no need for the follow up clarification that judges tend to employ. Rather, we would see a judge exploring the basis for any hesitation on the part of the defendant. But that’s rare.

Now, I’m not saying that we need to do away with this question, or re-work the Boykin canvass (at least not in this post); I’m merely following a train of thought out loud, as is my wont.

Those of you in other states: do your judges ask this question? If so, any insight on why it is necessary?

9 thoughts on “An idle thought on the Boykin canvass

  1. Jeff Gamso

    Judges in Ohio (at least my part of the state) and Texas (my part of it, and when I was practicing there) routinely ask it as part of the plea colloquy.

    When I first heard it, as a new lawyer in Texas, I thought it was an effort to avert IAC claims (or to make sure they failed). It didn’t take long to realize that made no sense. What I finally concluded is that it helps protect the plea from claims that it was involuntary. If you’ve entered the plea and you’re satisfied with your lawyer (and I’ve seen judges refuse to accept a plea when the answer to the question is anything but “Yes”), then you must really want to enter the plea.

    Courts of appeals, by the way, regularly cite that approval of counsel as part of the reason for affirming a trial court’s refusal to grant a withdrawal.

    Reply
    1. Gideon Post author

      But that doesn’t necessarily follow. You can want to enter a plea and yet be unhappy with your lawyer’s performance. Maybe you’re just a smart defendant who knows a good offer when he sees it, regardless of the attorney’s performance.

      Reply
  2. SusanK

    Judges in Nebraska ask it in felony cases – some of the ones in my area also ask if my client thinks I am competent and know what I’m doing. Never quite understood it, either, and the first time it was asked I was scared to death my extremely difficult client would answer no. It almost feels like a shield against malpractice.
    Defendants are not experts in professional competency, so I don’t see where it should have any effect in any other proceeding (including an attempt to withdraw a guilty plea).
    I don’t think it adds anything to proof of voluntariness, either. A client satisfied with my services is just that: a satisfied client. Maybe it’s a marketing opportunity I have neglected…

    Reply
    1. Jeff Gamso

      I don’t think it should be at all meaningful. I hope I didn’t suggest that I did. But courts seem to think it’s meaningful.

      Of course, courts think lots of silly things are meaningful. I remember, vividly, a judge asking a defendant who chose to defend himself in a capital case “Mr. Defendant. Do you think you’re competent to make this choice?” The judge thought the “Yes” really mattered.

      Reply
      1. Gideon Post author

        We really could save a lot of time and increase the efficiency of the system if we cut out the extraneous and useless questions in the canvass.

        Of course, I’ve also seen the other end of the spectrum:

        “Do you want to take this deal?”

        “Yes.”

        “Plea found to have been made voluntarily. Good luck, sir.”

        Reply
  3. Bill Thompson

    The question of satisfaction with one’s attorney is typically asked in my jurisdiction and can cause considerable puckering of an unmentionable body part in a given case. It’s one thing for a client to reluctantly do that which is clearly in his or her best interest and another as to whether satisfaction is derived from the decision. “Hey, I got you a really cushy deal, you only have to do 5 years! Satisfied?” This subject does bring to mind a famous quote from a letter to a colleague of mine from a client who had recently been sent to prison. “Dear Mr. Adams: I’d like to thank you for all you dun, even if you was workin’ for the other side.”

    Reply
  4. A.Reeder

    Of course it serves a purpose. I’ve been in the gallery in my jurisdiction, and have heard defendants answer “No” to the question. The judge asks why, and the defendant says the lawyer didn’t spend enough time, etc etc. At which point the judge calls out for another attorney in the gallery to come forward and accept a new case.

    Reply

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