Waivers in Plea Agreements

When a defendant pleads guilty, he waives a variety of rights, including the right to a trial, the right to confront the witnesses against him, and so on. The waiver of those rights is inherent in a guilty plea — there can’t be a guilty plea without such a waiver.

If a defendant doesn’t just plead guilty, but does so pursuant to a plea agreement, the defendant may waive other rights as specified in the plea agreement. For example, a defendant may agree to waive his right to appeal. That’s not inherent in the idea of pleading guilty — defendants who plead guilty normally retain the right to appeal certain issues, as described in G.S. 15A-1444(a1)-(a2). Instead, it’s part of the give-and-take of plea negotiations, so at least in theory, the defendant should be getting something in return for the additional waiver of rights.

The Washington Post published an article this weekend about the use of “DNA waivers” in plea agreements in federal court. Essentially, some federal prosecutors’ offices ask defendants who plead guilty to waive their rights to post-conviction DNA testing, to which they might otherwise be entitled under 18 U.S.C. § 3600. It sounds like some offices essentially always require such waivers, while other offices sometimes do, and others never do. The story says that the Department of Justice is going to review the use of such waivers.

There are several types of additional waivers that could conceivably be part of a plea agreement in North Carolina.

  • Waiver of the right to appeal. Cf. United States v. Marin, 961 F.2d 493 (4th Cir. 1992) (waiver of appellate rights generally valid and enforceable, except against a limited class of claims, such as that the defendant was sentenced “based on a constitutionally impermissible factor such as race”); Wayne R. LaFave, Criminal Procedure § 21.2(b) (noting a split of authority on propriety of such waivers, though the greater weight of authority, including all the federal circuits, supports their validity).
  • Waiver of the right to file post-conviction petitions, such as motions for appropriate relief. Cf. United States v. Lemaster, 403 F.3d 216 (4th Cir. 2005) (waiver of collateral attack rights generally valid and enforceable; the court relied on such a waiver to dismiss a claim of ineffective assistance of counsel).
  • Waiver of the right to post-conviction DNA testing under G.S. 15A-269.
  • Waiver of the right to the preservation of biological evidence under G.S. 15A-268, or recordings of interrogations under G.S. 15A-211(h).
  • Waiver of the right to reclaim evidence seized as part of the investigation.
  • Waiver of the right to receive discovery materials, perhaps including Brady material. Cf. United States v. Ruiz, 536 U.S. 622 (2002) (no constitutional right to receive impeachment material prior to entering guilty plea).

I’m not completely certain that all of these waivers would be proper. And some of them, even if proper, might be insufficient to achieve their intended purposes. For example, even if a defendant could validly waive his right to the preservation of biological evidence under G.S. 15A-268, the statute also requires that the Attorney General be notified before such evidence may be destroyed in advance of the time otherwise permitted under the statute.

But some of these waivers would almost certainly be proper and effective. For example, although I’m not aware of a North Carolina appellate court case expressly approving of appeal waivers, the authorities cited above strongly suggest that such waivers are proper. In fact, such waivers are almost de rigeur in many federal courts, and I have often wondered why they are vanishingly rare in state court. Perhaps it is a matter of incentives: most United States Attorneys’ Offices handle their own appeals and so have a strong desire to reduce the number of appeals filed, while in North Carolina, the Attorney General’s office represents the state in criminal appeals, giving trial prosecutors no personal stake in appeal waivers.

2 thoughts on “Waivers in Plea Agreements”

  1. The difference between federal and state practice in the context of appeal waivers, I suggest, may stem from the scope of issues that can be raised on appeal following a guilty plea. I worked for 25 years as an appellate prosecutor in a jurisdiction in which the prosecuting attorney’s office was responsible for trial level work and for appeals, and trial level prosecutors seldom asked for an appeal waiver as part of the plea agreement. But the issues that could be raised on appeal if the defendant pled guilty were limited: state law limited the scope of any challenge to the sentence, unlike federal practice. An inter-jurisdictional comparison that might be informative would be between federal practice, where the AUSA is usually assigned to the ensuing appeal, and Pennsylvania practice where the District Attorney is responsible for the trial court work and any appeals.


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