» Courts, Practice in General » The Factual Basis

The Factual Basis

Hang around most Arizona courts for a little while, and you’re likely to see a plea fall through for lack of a factual basis. For those readers who don’t know what I’m talking about, Arizona’s rules of criminal procedure require that a court determine whether a factual basis exists for each element of the crime to which a defendant is pleading before it can enter judgment on a guilty plea. Evidence constituting the factual basis can come from any part of the record or from a defendant’s statements. There’s no reasonable doubt standard for a guilty plea. Instead, the court just has to find strong evidence of guilt.

In a few courts, the plea will simply have a provision that says, “factual basis taken from police report #123.” In others, the plea will contain a written factual basis for that specific plea agreement. In those two types of courts, pleas fall through far less often because of problems with the factual basis, though it can still happen. In most Arizona courts, the defense attorney has to state a factual basis, and the judge will ask the defendant if he agrees with what his attorney just said. Pleas fall through more often in those courts. Finally, there are some courts where the judge just asks the defendant about what happened. That’s often disastrous, and pleas regularly fall through in those courts.

Factual basis problems usually arise because the defendant disputes something somewhere in the state’s disclosure. Occasionally, it’s a big thing, like whether he actually had marijuana on him, or whether he drove the car while impaired at all. If that’s the case, he probably shouldn’t be entering a run-of-the-mill guilty plea in the first place. There are other options available to him, like a no contest plea or an Alford plea.

More often than not, though, the defendant takes issue with something minor and fixates on it. He doesn’t think he was read the Miranda warnings, though all of the police officers said he was. He doesn’t think he swerved or drove erratically because he’s a skillful drunk driver. Fair enough. Maybe he’s right, but he’s choosing to enter a plea. He doesn’t dispute the facts needed to support it, but instead wants to express his dissatisfaction with some other aspect of his case that’s upset him.

No matter how good a job a lawyer does of explaining what to do and what not to do at a change of plea, some defendants are going view the time for the factual basis as an opportunity to air their grievances. There’s something about that point in the change of plea that invites rants. Defendants will say that the cop’s a liar, that the victim made stuff up, or that it didn’t happen like an eye-witness said. Usually, they explain themselves in a way that makes it seem like they’re denying guilt altogether. The attorney can try to clarify the defendant’s statements, but most of the time the judge will just note there’s no evidence of the factual basis and set the matter for trial.

Just telling some clients not to go off on a rant isn’t enough, and going over everything in detail only works if they’re listening and capable of exercising self-control. Sometimes, you just can’t save a client from himself. He’ll give you the perfect factual basis when he first describes to you what happened, but when he gets in front of the judge, he tells a different story altogether. It’s something that every defense attorney has to deal with at some point.

When I first became a defense attorney, I thought lawyers whose clients did not seem to agree to the factual basis at the change of plea were plea agreement salesmen pushing crappy deals on unsuspecting clients. That didn’t last very long. I soon realized that the problem wasn’t the attorney, but the system itself.

In our cold, impersonal system, the version of events presented by the victim or the officer is often viewed as being confirmed as true in its entirety the moment the defendant enters a change of plea. We give the defendant a shot to say what happened when it’s time for the factual basis, but we punish him for saying what may be the truth if it deviates from what we suspect happened. It’s rare that I have a client who doesn’t dispute some part of the state’s version of events.

I wish every jurisdiction required that the factual basis be negotiated by the parties and written down, but the practical reality is that many prosecutors lack the requisite time and knowledge of their cases. Pleas are going to continue to fall apart regularly. Although it’s usually not a good thing when that happens, it does tells us a lot. It tells us the state’s suspicions may not always be correct. It tells us our system is imperfect and that we may be convicting innocent people. It also reminds us that clients can be irrational and unpredictable. Too bad more people aren’t listening.

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