Pleas Use Voluntariness “Magic Words” Test—The Vermont Decision that Misinterpreted Criminal Rule 11

Pleas Use Voluntariness “Magic Words” Test—The Vermont Decision that Misinterpreted Criminal Rule 11

Kaelyn Barbour

Imagine a case where a defendant is charged with crimes spanning three different counties—involving 16 counts of burglary, 9 counts of grand larceny, and 8 counts of petit larceny.[1] The defendant agrees to plead guilty and, because of this, the prosecutor drops the nine counts of grand larceny and eight counts of petit larceny—both the prosecution and the defendant feel this effect.[2] At the plea hearing, the defendant signs a waiver of his rights and gives a full and complete confession to police.[3] Later, after serving five years of his sentence, the defendant successfully challenges the sufficiency of the plea colloquy.[4] The court withdraws the guilty plea, but the prosecutor dropped the original charges based on the defendant’s plea of guilty.[5] That is the precise case at issue here.

The prevalence of plea bargaining is unequivocal. Any person that follows the criminal justice system knows that it is the primary tool courts use to adjudicate cases—all in the name of efficiency.[6] Over 90% of state cases end in plea bargains, “with defendants pleading guilty in exchange for a lesser sentence.”[7] According to the Vermont Judiciary Annual Statistics Report for fiscal year 2016, less than 2% of felony cases went to trial in the state, and that number is even smaller for misdemeanors.[8] In his dissenting opinion to Lafler v. Cooper, the late U.S. Supreme Court Justice Antonin Scalia referred to plea bargains as a “necessary evil” when discussing the Sixth Amendment right for a defendant to receive effective assistance from a lawyer during pretrial negotiations.[9] However, Justice Kennedy’s majority opinion raised plea bargains to a constitutional entitlement.[10] Whether individuals agree with Justice Scalia or Justice Kennedy, or their views align somewhere in between, it is a fact that both parties to a plea bargain feel its effects.[11]

This Note will examine In re Bridger, a Vermont criminal case in which a defendant successfully challenged the sufficiency of his plea colloquy under Vermont Rule of Criminal Procedure Rule 11, modeled after Federal Rule of Criminal Procedure 11.[12] The decision by the Vermont Supreme Court is a controversial one. Some argue that it reflects a lack of understanding of how the criminal justice and plea-bargaining systems work.[13] Others praise the decision, arguing that it promotes clarity and protects individuals in a system that has come to function almost solely from guilty pleas.[14] And still others state that they are not worried because the decision has several limiting factors.[15]

Part I will provide relevant background information including the facts and procedural history for In re Bridger.[16] Part II will summarize the positions of each of the justices that took part in the decision. Part III will address the fundamental question: whether the majority’s current interpretation of Vermont Criminal Rule 11 is practicable when viewed in conjunction with judicial efficiency and judicial resources. Part III will also address the issue of whether, if this is a practicable interpretation, the decision should be applied retroactively or prospectively. Finally, Part IV addresses what this holding means for the landscape of the criminal justice system in Vermont. This Note will conclude by summarizing the practicality of the relevant law and offer recommendations for policymakers moving forward.

[1] In re Bridger, 2017 VT 79, ¶ 2.

[2] Id.

[3] Id.

[4] Id. ¶ 1.

[5] Id. ¶ 2.

[6] See Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 32–33 (1979) (explaining the history of plea bargaining and the development of its prevalence in our criminal justice system).

[7] Erica Goode, Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals, N.Y. Times (Mar. 22, 2012),

[8] Vt. Judiciary Ann. Stat. Rep. for FY16 31 (2016),

[9] Lafler v. Cooper, 566 U.S. 156, 186 (2012) (Scalia, J. dissenting); see also Goode, supra note 7.

[10] Lafler, 566 U.S. at 186 (Scalia, J. dissenting).

[11] See Brady v. United States, 397 U.S. 742, 753 (1970) (explaining that plea bargaining is constitutional a defendant may receive lesser offenses and reduced charges for pleading guilty); see also Bruce A. Green, The Right to Plea Bargain with Competent Counsel After Cooper and Frye: Is the Supreme Court Making the Ordinary Criminal Process “Too Long, Too Expensive, and Unpredictable…in Pursuit of Perfect Justice”?, 51 Duq. L. Rev. 735, 742 (2013) (stating that prosecutor’s exchange guilty pleas to conserve administrative and judicial resources while achieving finality).

[12] In re Bridger, 2017 VT 79 ¶ 1.

[13] See Gordon Dritschilo, Little Fallout Is Seen from Bridger Ruling, Rutland Herald (Sep. 13, 2017), (stating that Rutland County State’s Attorney Rose Kennedy called the ruling “troubling” and it threw doubt on an untold number of other convictions achieved through plea bargains).

[14] See id. (quoting Professor Jared Carter of Vermont Law School who painted the decision in a positive light and stated that he “believes it restates what the Supreme Court thinks is necessary in a plea agreement”).

[15] See id. (“Assistant Attorney General John Treadwell said Tuesday several factors limited the Bridger decision’s impact. He said appeals for post-conviction relief could only be made by convicts in custody, leaving out people who have served their sentences or those who were fined.”).


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