Gale Encyclopedia Of American Law 3Rd Edition Volume 7 P53 potx

therefrom, and passing the material off as one’s own creation. Plagiarism is theft of another person’s writings or ideas. Generally, it occurs when someone steals expressions from another author’s composition and makes them appear to be his own work. Plagiarism is not a legal term; however, it is often used in lawsuits. Courts recognize acts of plagiarism as violations of COPYRIGHT law, specifically as the theft of another person’s INTELLECTUAL PROPERTY. Because copyright law allows a variety of creative works to be registered as the property of their owners, lawsuits alleging plagiarism can be based on the APPROPRIATION of any form of writing, music, and visual images. Plagiarism can take a broad range of forms. At its simplest and most extreme, plagiarism involves putting one’s own name on someone else’s work; this is commonly seen in schools when a student submits a paper that someone else has written. Schools, colleges, and universi- ties usually have explicit guideline s for review- ing and punishing plagiarism by students and faculty members. In copyright lawsuits, how- ever, allegations of plagiarism are more often based on partial theft. It is not necessary to exactly duplicate another’s work in order to infringe a copyright: It is sufficient to take a substantial portion of the copyrighted material. Thus, for example, plagiarism can in clude copying language or ideas from another novel- ist, basing a new song in large part on another’s musical composition, or copying another artist’s drawing or photograph. Courts and juries have a difficult time determining when unlawful copying has oc- curred. One thing the PLAINTIFF must show is that the alleged plagiarist had access to the copyrighted work. Such evidence might include a showing that the plaintiff sent the work to the DEFENDANT in an attempt to sell it or that the work was publicly available and widely disseminated. Once access is proven, the plaintiff must show that the alleged plagiarism is based on a substantial similarity between the two works. In Abkco Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir 1983), the Second Circuit Court of Appeals found “unconscious” INFRINGE- MENT by the musician George Harrison, whose song “My Sweet Lord” was, by his own admission, strikingly similar to the plaintif f ’s song, “He’s So Fine.” Establishing a substantial similarity can be quite difficult as it is essentially a subjective process. Not every unauthorized taking of another’ s work constitutes plagiarism. Exceptions are made under copyright law for so-called fair use, as in the case of quoting a limited portion of a published work or mimicking it closely for purposes of parody and satire. Furthermore, similarity alone is not proof of plagiarism. Courts recognize that similar creative inspira- tion may occur simultaneously in two or more people. In Hollywood, for example, where well- established conventions govern filmmaking, this conventionality often leads to similar work. As early as 1942, in O’Rourke v. RKO Radio Pictures, 44 F. Supp. 480, the Massach usetts District Court ruled against a screenwriter who alleged that a movie studio had stolen parts of his unproduced screenplay Girls’ Reformatory for its film Condemned Women. The court noted that the similar plot details in both stories—prison riots, escapes, and love affai rs between inmates and officials—might easily be coincidental. Sometimes the question is one of proper attribution. In January 2002 two highly regarded historians, Stephen Ambrose and Doris Kearns Goodwin, were accused of plagia- rism in The Weekly Standard. The magazine revealed that Ambrose (who died in October 2002) took passages from another author’s work and used them in his 2001 book The Wild Blue, whereas Goodwin used passages from several authors in her 1987 book The Fitzgeralds and the Kennedys. Both authors apologized, ac- knowledging that they had erred and adding that their failure to provide proper attribution was completely inadvertent. Goodwin went so far as to address her mistakes in an essay in Time magazin e. They agreed to correct the problem in future editions of the books in question. While some of their colleagues accepted the explanation, others questioned whether authors of such talent and prominence were in fact being disingenuous considering that both had borrowed numerous passages, not just one or two. The Internet has added a new layer to the question of plagiarism, particularly among high-school and college students. Since the mid-1990s a number of Web sites have cropped up that offer term papers, thesis papers, and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 508 PLAGIARISM dissertations for sale. These “paper mills” make it easy for students to purchase papers instead of writing their own. A similarly egregious prob- lem results from the wide array of legitimate reports many Web sites make available on the Internet for research purposes. Unscrupulous students with a computer can easily copy large blocks of these reports and paste them into their own papers. Anecdotal evidence suggests that while the ease of copying information has not led to a dramatic increase in plagiarism among honest students, those who have already cheated are likely to make frequent use of electronic resources to continue cheating. Students who use the “copy-and-paste” writing method are being thwarted by instructors who have access to specialized search engines that can find identical passages in another paper. FURTHER READINGS Keyt, Aaron. 1988. “An Improved Framework for Music Plagiarism Litigation.” California Law Review 76 (March). Lewis, Mark. 2002. “Doris Kearns Goodwin and the Credibility Gap.” Forbes (February 27). Posner, Richard. 2007. The Little Book of Plagiarism. New York: Pantheon. CROSS REFERENCES Copyright; Literary Property; Music Publishing; Publishing Law. PLAIN-ERROR RULE The principle that an appeals court can reverse a judgment and order a new trial because of a serious mistake in the proceedings, even though no objection was made at the time the mistake occurred. The issuance of inconsistent instructions to a jury that would result in a miscarriage of justice, for example, can furnish the basis for a new trial, even though no timely and proper objection to the instructions was made. Al- though a person is entitled to a fair trial, he or she is not entitled to a flawless one; the individual does not have the right to a new trial merely because a HARMLESS ERROR has been committed. PLAIN-MEANING RULE A principle used by courts in interpreting contracts that provides that the objective definitions of contractual terms are controlling, irrespective of whether the language comports with the actual intention of either party. The plain meaning of the contract will be followed where the words used—whether written or oral—have a clear and unambiguous meaning. Words are given their ordinary meaning; technical terms are given their technical meaning; and local, cultural, or TRADE USAGE of terms are recognized as applicable. The circumstances surrounding the formation of the contract are also admissible to aid in the interpretation. CROSS REFERENCES Extrinsic Evidence; Parol Evidence. PLAIN VIEW DOCTRINE In the context of searches and seizures, the principle that provides that objects perceptible by a law enforcement officer who is rightfully in a position to observe them can be seized without a search warrant and are admissible as evidence. The U.S. SUPREME COURT has developed and refined the plain view doctrine over time. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971), the Court ruled that the seizure of two automobiles in plain view during the arrest of the DEFENDANT, along with later findings of gunpowder, did not violate the defendant’s FOURTH AMENDMENT rights (protection against unreasonable SEARCH AND SEIZURE). The plain view doctrine has three require- ments: (1) There must be a prior valid intrusion. This means that police officers must have a lawful reason to be in the place where they view an object in plain view. If an officer’s presence in a particular location is illegal or unconstitutional, then the officer may not lawfully seize any object, even if it is in plain view. (2) The discovery of the seized items must be inadvertent. This means that the officer must not have entered the location for the sole purpose of seizing the object, but instead must be present for a different reason, like arresting a suspect. (3) It must be immediately apparent to the police that they have evidence of criminal activity before them. The plain view doctrine may not be used to extend a general exploratory search from one object to another until the officer inadvertently comes across a piece of evidence that is incriminating to the accused. The Court has drawn distinctions between searches and seizures in applying the plain view GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PLAIN VIEW DOCTRINE 509 doctrine. In Arizona v. Hicks, 480 U.S. 321, 197 S.Ct. 1149, 94 L.Ed.2d 347 (1987), the Court held that no seizure had occurred when a police officer called to the scene of a shooting incident recorded serial numbers of stereo equipment he observed in plain view, and which he believed had been stolen. Nevertheless, the officer’s actions in moving the equipment to find the serial numbers constituted a search; the officer had a “reasonable suspicion” that the equip- ment had been stolen, but it was not supported by PROBABLE CAUSE. Since the early 1990s, several jurisdictions have extended the plain view doctrine to enable police officers to make use of senses besides sight, to preve nt the destruction of evidence. Known as the “plain smell” or “plain touch” doctrines, officers who detect signs of criminal activity by their senses of smell or touch may take immediate action to investigate or i nter- vene. Thus, if a police officer detects the scent of marijuana wafting from a nearby room while arresting a suspect, or encounters an object that feels like a weapon during a pat-down of a suspect’s clothing, the officer may follow the lead by investigating the smell immediately or seizing the object immediately. CROSS REFERENCES Exclusionary Rule; Fourth Amendment; Search and Seizure; Seizure. PLAINTIFF The party who sues in a civil action; a complain- ant; the prosecution—that is, a state or the United States representing the people—in a criminal case. PLAINTIFF IN ERROR The uns uccessful party in a lawsuit who com- mences proceedings for appellate review of the action because a mistake or “error” has been made resulting in a judgment against him or her; an appellant. PLAT A map of a town or a section of land that has been subdivided into lots showing the location and boundaries of individual parcels with the streets, alleys, EASEMENTS, and rights of use over the land of another. A plat is usually drawn to scale. PLEA A formal response by the defendant to the affirmative assertions of the plaintiff in a civil case or to the charges of the prosecutor in a criminal case. Under the old system of COMMON-LAW PLEADING , a plea was the defendant’s first PLEADING in a case. The plea was the document in which the DEFENDANT set out reasons why the PLAINTIFF should not win on the claim made in his or her declaration. Rather than enter a plea, a defendant could file a demurrer—a pleading in which the defendant argued that the plaintiff had not made a legally sufficient case. If the defendant did not demur, she responded to the plaintiff’s declaration with a plea. There were two kinds of pleas at COMMON LAW : dilatory and peremptory. A DILATORY PLEA did not argue against the merits of the plaintiff’s claim but challenged that individual’srightto have the court hear the case. It was called dilatory not because it unfairly delayed the trial but simply because it postponed the time when, if ever, the court would reach the merits of the case. A PLEA IN ABATEMENT was a dilatory plea. A peremptory plea, also called a PLEA IN BAR, did reach the merits of the case. It set out certain facts that the defendant claimed would bar the granting of relief to the plaintiff. The plea could be a traverse, a full denial of the plaintiff’s version of the facts. In that situation, the issue was defined and the case went to trial for a determination in favor of one party or the other. The plea could be a CONFESSION AND AVOIDANCE , by which the defendant conceded the truth of the plaintiff’s allegations but asserted new facts by which she sought to avoid the legal effect of the plaintiff’s claim. For example, the defendant could admit that she had made a bargain as claimed by the plaintif f and then add that she was a minor at the time that she entered into the agreement and, therefore, could not be bound by it. At that point, no issue would yet have been disputed by both parties, and the plaintiff would have to respond to the plea. The plaintiff had the same range of possible responses that the defendant had had when she selected the plea, but the plaintiff’s RESPONSIVE PLEADING was called a replication. If the plaintiff raised a new question, the defendant had to respond with a rejoinder. After that, the pleading process could GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 510 PLAINTIFF bounce back and forth with a surrejoinder, a rebutter, and a surrebutter. Common-law pleading became so complex and hypertechnical that it has now been replaced by CODE PLEADING and pleading similar to that of the federal CIVIL PROCEDURE . A defendant could also enter a plea in a case in equity. This was a special kind of answer to a bill in equity that showed one or more reasons why the suit should be dismissed, delayed, or barred entirely. Since the procedures for cases at law and in equity have been merged, the plea in equity has also been abolished. A criminal defendant has some options in responding to charges made against him. The rules of CRIMINAL PROCEDURE in the federal courts and many state courts permit a defendant to enter a plea of guilty, not guilty, or NOLO CONTENDERE (meaning “I do not wish to contest it”). If a defendant fails or refuses to enter any plea at all, the court will enter a plea of “not guilty” for that individual, and then the trial may begin. Most states allow a criminal defendant to withdraw a guilty plea prior to sentencing. The rules governing withdrawal of guilty pleas typically leave the matter to the judge’s discre- tion about whether to allow a defendant to withdraw a guilty plea. These rules also allow the state to respond to a defendant’s motion to withdraw a plea. A defendant who pleads guilty waives several rights, including the defendant’sright to trial. Courts must ensure that the defendant has acted knowingly and that the defendant was aware of the relevant circumstances surrounding the plea, as well as the conse- quences for entering the guilty plea. A guilty plea cannot be the product of coercion, duress, or overreaching. FURTHER READINGS Marcus, Paul. 2009. Criminal Procedure in Practice. 3d ed. Louisville, CO: National Institute for Trail Advocacy. Saltzburg, Stephen A., Daniel J. Capra, and Angela J. Davis. 2009. Basic Criminal Procedure. 5th ed. St. Paul, MN: West 2009. CROSS REFERENCES Criminal Procedure; Plea Bargaining. PLEA BARGAINING Plea bargaining is the process whereby a criminal defendant and prosecutor reach a mutually satisfactory disposition of a criminal case, subject to court approval. Plea bargaining can conclude a criminal case without a trial. When it is successful, plea bargaining results in a plea agreement between the PROSECUTOR and DEFENDANT. In this agreement, the defendant agrees to plead guilty without a trial, and, in return, the prosecutor agrees to dis- miss certain charges or make favorable sentence recommendations to the court. Plea bargaining is expressly authorized in statutes and in court rules. In federal court, for example, plea bargaining is authorized by subsection (e) of rule 11 of the Federal Rules of CRIMINAL PROCEDURE.Underrule 11(e), a prosecutor and defendant may enter into an agreement whereby the defendant pleads guilty and the prosecutor offers to move for dismissal of a charge or charges, to recommend to the court a particular sentence or agree not to oppose the defendant’s request for a particular sentence, or to agree that a specific sentence is the appropriate disposition of the case. A prosecutor can agree to take any or all of these actions in a plea agreement. Under rule 11(e), plea bargaining must take place before trial unless the parties show good cause for the delay. Generally a judge will authorize a plea bargain if the defendant makes a knowing and voluntary waiver of his or her right to a trial, the defendant understands the charges, the defen- dant understands the maximum sentence he or she could receive after PLEADING guilty, and the defendant makes a voluntary confession, in court, to the alleged crime. Even if a defendant agrees to plead guilty, a judge may decline to accept the guilty plea and plea agreement if the charge or charges have no factual basis. The judge does not participate in plea bargain discussions. Prosecutors have discretion whether to offer a plea bargain. However, a prosecutor may not base the determination of whether to negotiate on the basis of an unjustifiable standard such as race, religion, or some other arbitrary classification. Plea bargaining can be advantageous for both prosecutors and defendants. Prosecutors may seek a plea bargain in certain cases to save valuable court time for high-priority cases. Prosecutors often are amenable to plea bargain- ing with a defendant who admits guilt and accepts responsibility for a crime: Plea bargain- ing in this context is considered the defendant’s GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PLEA BARGAINING 511 reward for confessing. Prosecutors also accept plea bargains because they are evaluated in large part according to their conviction rates, and all plea bargains result in a conviction because the defendant must plead guilty as part of the plea agreement. Criminal defendants may also benefit from plea bargaining. Plea agreements provide quick relief from the anxiety of criminal prosecution because they shorten the prosecution process. Furthermore, plea agreements usually give defen- dants less punishment than they would receive if they were found guilty of all charges after a full trial. For example, assume that a defendant has been charged with one count of driving under the influence and o ne count of possession of a controlled substance with intent to sell. If the defendant goes to trial and is found guilty on both counts, he could receive a prison sentence of several years. However, if he agrees to plead guilty to the charge of possession with intent to sell, the prosecutor may drop the driving-under- the-influence charge. The net result would be a slightly shorter prison sentence than would result with inclusion of the other count. As part of the same deal, the prosecutor also may agree to reduce the remaining charge in exchange for something from the defendant. For example, the prosecutor may ask the defendant to testify against the supplier of the drugs or to build a case against the supplier by acting as an agent for the police. A reduced charge, such as from possession with intent to sell down to simple possession, would further decrease any possible prison sentence. Finally, the prosecutor may agree to recommend to the court t hat the Plea Bargaining: A Shortcut to Justice P lea bargaining is widely used in the criminal justice system, yet seldom praised. Plea agreements are troublesome because they are something less than a victory for all involved. Prosecutors are loath to offer admitted criminals lighter sentences than those authorized by law. Likewise, most criminal defendants are less than enthusiastic over the prospect of openly admitting criminal behavior without the benefit of a trial. Despite the reservations of the parties, plea agree- ments resolve roughly nine out of every ten criminal cases. The sheer numbers have caused many legal observers to question the propriety of rampant plea bargaining. Some critics of plea bargaining argue that the process is unfair to criminal defendants. These critics claim that prosecutors possess too much discretion in choosing the charges that a criminal defendant may face. When a defendant is arrested, prosecutors have the authority to level any charge if they possess enough facts to support a reasonable belief that the defendant committed the offense. This standard is called probable cause, and it is a lower standard than ability to prove a charge beyond a reasonable doubt, the standard that the prosecution must meet at trial. Thus, for leverage, a prosecutor may tack on similar, more serious charges without believing that the charges can be proved beyond a reason- able doubt at trial. Because prosecutors are evaluated in large part on their conviction rates, they are forced to try to win at all costs. According to some critics, prosecutors use overcharging to coerce guilty pleas from defendants and deprive them of the procedural safeguards and the full inves- tigation of the trial process. For example, assume that a defen- dant is arrested for trespassing. Assume fur ther that the trespass was an honest mistake and that the defendant was, by happenstance, on the property of a former spouse. In addition to trespas- sing, the prosecutor may charge t he defendant, on the facts, with s talkin g and attempted burglary. The prospect of facing a trial on three separate criminal charges may induce t he defendant to plea bargain because the potential cu- mulative punishment for all three crimes is severe. Ultimately the defen- dant may plead guilty to, and forfeit t he right to a trial on, the trespassing charge, the only charge that stands a chance of being proved beyond a reasonable doubt. Such a plea bargain, claim some critics, is an illusory bargain for criminal defendants. The practice of overcharging is impermissible, and courts may dismiss superfluous charges. However, cour ts are reluctant to prevent the prosecution from presenting a case on a charge that is supported by probable cause. Prose- cutors have discretion in plea bargain- ing, and they may withdraw offers after making them. A defendant is also free to reject a plea bargain. In many cases, where a plea bargain is withdr awn or rejected and the case goes to trial, the defendant, if found guilty, receives punishment more severe than that offered by the prosecution in the plea bargain. This has been called the “trial GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 512 PLEA BARGAINING defendant serve a shorter prison sentence than the maximum term allowable under the simple possession statute. Courts have generally upheld bargains whereby one defendant agrees to testify against another defendant or to provide evidence that incriminates another suspect. S ome criminal defendants have sought to challenge these arrangements when other defendants have testified against them. For example, in United States v. Singleton (165 F.3d 1297 [10th Cir. 1999]), prose cutors struck a deal with Napoleon Douglas, a drug dealer, whereby the prosecutors agreed to reduce the charges against him if he agreed to testify against Sonya E. Singleton. A trial court convicted Singleton of conspiring to distribute drugs and of MONEY LAUNDERING.Singleton’s attorney argued during the trial and later on appeal that the deal between the prosecutors and Douglas amounted to BRIBERY in violation of 18 U.S.C.A. § 201(c)(2) (2000). Although a panel of the United States Court of Appeals for the Tenth Circuit initially agreed with Singleton, the court sitting en banc overruled the panel and affirmed the conviction. According to the court, the federal bribery statute did not apply to the federal government with respect to plea bargains. Defendants are not required to enter into plea negotiations or accept a plea agreement offer. Some defendants choose to decline a plea bargain if they believe that the risk of conviction is outweighed by the possibility of ACQUITTAL. Other defendants may disregard the risks and make a principled choice to proceed to trial. Some of these defendants seek to use trial proceedings as a forum for expressing penalty” and it is another source of criticism of the plea bargain. Adefendantwhogoestotrialandis found guilty of a serious felony receives, on the average, a prison sentence that is twiceaslongasthesentenceofferedina plea bargain for the same offense. A defendant cannot be penalized for pleading not guilty and going to trial, but the U.S. Supreme Court has not held that it is impermissible to punish defendants with sentences that are longer than those offered in plea agree- ments. When overcharging and th e trial penalty are combined in the regular practice of plea bargaining, defendants have little choice but to plead guilty, and virtually every criminal act may be disposed of without a trial. This, according to some critics, is a perversion of the criminal justice system. Other critics focus on the benefits that plea bargaining gives to defendants. They argue that plea bargaining softens the deterrent effect of punishment be- cause it gives criminal defendants the power to bargain for lesser punishments. These critics note that experienced crim- inals are more likely to receive favorable plea bargains because they are familiar with the criminal justice system. Accord- ing to these critics, plea bargaining subverts the proposition that a criminal should receive a punishment suited to the crime. Critics of plea bargaining tend to be either scholars or crime victims . Scho- lars complain of prosecutorial coe rcion, and cr ime victims decry th e lighter sentences that plea bargaining produces. Defend ers of plea bargaining tend to be the players in the system. These are judges, prosecutors, crimina l defen- dants, and criminal defense attorneys. The majority of these persons accept plea bargaining as a necessary tool in the administration of criminal justice. They point out that critics of plea bargaining have no solution to the lack of judicial resources. Without increased funding formorecourts,judges,prosecutors, and court employees, plea bargaining is a necessity in most jurisdictions. In response to the o vercharging argument, suppor ters of p lea bargaining note that the prosecutor’s discretion in charging is a concept deeply ingrained in U.S. law, and for go od reason. A prosecutor is not re quired to decide the case before trial. In stead the prosecutor is required to press charges based on the facts and to present evidence to support the charges. If t here is no reasonable interpretation of the facts to support a certain charge, the charge will b e dismissed. The judge or jury makes the final decision of whether the evidence warrants c onviction on a certain offense. Defendants may receive harsher sentences upon conviction at trial, but i n any case the sentence must be authorized by law. Thus, procedural safeguards effectively protect criminal defendants from the perils of over- charging. Proponents of plea b argaining also contend that both defendants and society reap benefits. Defendants b enefit because both the defendant and prose- cutor help to fashion an appropriate punishment. Society benefits because it is spared the cost of lengthy trials while defendants admit to crimes and still receive punishment. Although the pun- ishment pursuant to a plea agreement is generally less severe than that imposed upon conviction after a trial, the process nevertheless produces a deterrent effect on criminal behavior because prosecutors are able to ob tain more convictions. Each conviction places a defendant under the supervision of the criminal justice s ystem, and this decreases the defendant’sfreedom. Moreover, subsequent convic tions after aguiltypleacanbepunishedmore harshly because defendants are pun- ished in large part according to their criminal history. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PLEA BARGAINING 513 DISSENT, and others merely wish to exercise their constitutional right to a trial or to publicly declare their version of events. Prosecutors, likewise, are not obliged to plea bargain. When the alleged crime is particularly heinous or the case is highly publicized o r po litic ally charged, a prosecutor may be reluctant to offer any deals to the defendant in deference to victims or public sentiment. For example, a prosecutor may not offer a bargain to a person accused of a brutal RAPE and MURDER because such acts are widely considered to deserve the maximum allowable punishment. The political influence on plea bargaining is more nebulous. Because prosecutors are hired by federal, state, and local governments, they often have political ties. If a case involves a prominent member of a political party, a prosecutor may refuse to offer a plea bargain to avoid the appearance of favoritism. When a court accepts a plea agreement, the guilty plea operates as a conviction, and the defendant cannot be retried on the same offense. However, if the defendant breaches a plea agreement, the prosecution may reprose- cute the defendant. For example, assume that Defendant A, as part of the plea agreement, must testify against Defendant B. If Defendant A pleads gui lty pursuant to this agreement but later refuses to testify against Defendant B, the prosecutor may seek a revocation of the plea agreement and guilty plea. If the government breaches a plea agreement, the defendant may seek to withdraw the guilty plea, ask the court to enforce the agreement, or ask the court for a favorable modification in the sentence. The government breaches a plea agreement when it fails to deliver its part of the plea agreement. For example, if a prosecutor agrees to dismiss a certain charge but later reneges on this promise, the defendant may withdraw her guilty plea. An unenthusiastic sentence recommendation by a prosecutor is not a breach of a plea agreement (United States v. Benchimol, 471 U.S. 453, 105 S. Ct. 2013, 85 L. Ed. 2d 462 [1985]). Some prosecutors demand that defendants waive certain constitutional rights in exchange for a plea bargain. One such right involves Brady evidence, which consists of exculpatory or IMPEACHMENT evidence that tends to prove the factual innocence of the defendant. Under thecaseofBrady v. Maryland (3 73 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 [1963]), the U.S. SUPREME COURT requires prosecutors to inform defendants of such evidence. In 2001, the U.S. Court of Appeals for the Ninth Circuit held that it was unconstitutional for prosecutors to withhold a departure recommendation on groundsthatthedefendantrefusedtowaive his or her right to Brady evidence (United States v. Ruiz, 241 F.3d 1157 [9th Cir. 2001]). A unanimous Supreme Court, however, dis- agreed, holding that the “Constitution doe s not require the government to disclose mate- rial evidence prior to entering a plea agreement with a criminal defendant” (United Stat es v. Ruiz, 536 U.S. 622, 122 S. Ct. 2450, 153 L. Ed. 2d 586 [2002]). When a prosecutor or defendant revokes a plea agreement, the statements made during the bargaining period are not admissible against the defendant in a subsequent trial. This rule is designed to foster free and open negotiations. There are, however, notable exceptions. The rule applies only to prosecutors: A defendant’s statements to government agents are admissible. Furthermore, a prosecutor may use state- ments made by the defendant during plea negotiations at a subsequent trial to IMPEACH the defendant’s credibility after the defendant testifies. Many jurisdictions maintain statutes that require victim notification of plea bargaining. In Indiana, for example, a prosecutor must notify the victim of a felony of negotiations with the defendant or the defendant’s attorney concern- ing a recommendation that the prosecutor may make to the court. If an agreement is reached, the prosecutor must show the agreement to the victim, and the victim may give a statement to the court at the sentencing hearing (Ind. Code § 35-35-3-2 [1996]). Plea bargaining was not favored in colonial America. In fact, courts actively discouraged defendants from pleading guilty. Courts grad- ually accepted guilty pleas in the nineteenth century. As populations increased and court procedural safeguards increased, courts be- came overcrowded, and trials became length- ier, which made going to trial in every case impossible. By the twentieth century, the vast majority of criminal cases were resolved with guilty pleas. Indeed, statistics reflect that plea bargaining has become increasingly accepted GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 514 PLEA BARGAINING and used as a means of resolving cases. Since the early 2000s, plea bargaining has been conducted in almost e very criminal case, and roughly nine out of ten plea discussions yie ld plea agreements. FURTHER READINGS Fisher, George. 2003. Plea Bargaining’s Triumph: History of Plea Bargaining in America. Palo Alto, CA: Stanford Univ. Press. Gifford, Donald G. 1983. “Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion.” University of Illinois Law Review 37. Herman, Nicholas Herman. 1997. Plea Bargaining. Charlot- tesville, Va.: Lexis Law. Hessick, F. Andrew, III, and Reshma M. Saujani. 2002. “Plea Bargaining and Convicting the Innocent: The Role of Prosecutor, the Defense Counsel, and the Judge.” BYU Journal of Public Law 16. Heumann, Milton. 2002. “Plea Bargaining: Process and Outcome.” Criminal Law Bulletin 38. Nasheri, Hedieh. 1998. Betrayal of Due Process: A Compara- tive Assessment of Plea Bargaining in the United States and Canada. Lanham, Md.: Univ. Press of America. Odiaga, Ursula. 1989. “The Ethics of Judicial Discretion in Plea Bargaining.” Georgetown Journal of Legal Ethics 2. Scott, Robert E., and William J. Stuntz. 1992. “Plea Bargaining as Contract.” Yale Law Journal 101. Soni, Anjili, and Michael E. McCann. 1996. “Guilty Pleas.” Georgetown Law Journal 84. Vogel, Mary E. 2007. Coercion to Compromise: Plea Bargaining, the Courts, and the Making of Political Authority. New York: Oxford Univ. Press. CROSS REFERENCES Beyond a Reasonable Doubt; Criminal Law; Criminal Procedure; District and Prosecuting Attorneys; Due Pro cess of Law; Probable Cause. PLEA IN ABATEMENT In COMMON-LAW PLEADING, a response by the defendant that does not dispute the plaintiff’s claim but objects to its form or the time or place where it is asserted. A plea in abatement does not absolutely defeat the plaintiff’s claim because, even if the plea is successful, the plaintiff may renew the lawsuit in a proper form, time, or place. For this reason, it is called a dilatory plea, because it has the effect of postponing the time when a court considers the actual merits of the case of each party. The plea in abatement was abolished as a particular form of response by the defendant when common-law PLEADING was replaced by CODE PLEADING and later by pleading rules, such as the federal Rules of Civil Procedure. Sometimes the term is still loosely used for modern procedural devices that accomplish what the old plea in abatement used to do. CROSS REFERENCE Civil Procedure. PLEA IN BAR An answer to a plaintiff’s claim that absolutely and entirely defeats it. A plea in bar sets forth matters that deny the plaintiff’s right to maintain his or her lawsuit; for example, because the STATUTE OF LIMITATIONS has expired or because the claim necessarily overrides a constitutionally protected right of the defendant. PLEADING Pleading is the same as asking a court to grant relief. It is the formal presentation of claims and defenses by parties to a lawsuit. Pleading also refers to the specific papers by which the allegations of parties to a lawsuit are presented in proper form; specifically the complaint of a plaintiff and the answer of a defendant plus any additional responses to those papers that are authorized by law. Different systems of pleading have been organized generally to serve four functions: (1) to give notice of the claim or defense; (2) to reveal the facts of the case; (3) to formulate the issues that have to be resolved; and (4) to screen the flow of cases into a particular court. Different systems may rely on the pleadings to accomplish these purposes or may use the pleadings along with other procedural devices, such as discovery, PRETRIAL CONFERENCE among the parties, or SUMMARY JUDGMENT. In medieval England, the parties simply presented themselves to a tribunal and explained their dispute. This method worked well enough in the local courts and in the feudal courts where a lord heard cases involving his tenants, but the great COMMON-LAW COURTS of the king demanded more formality. From the end of the fourteenth to the middle of the sixteenth century, the royal courts began more and more to demand written pleadings that set out a party’s position in a case. Predictably the shift resulted in more formality and more rigid technical requirements that were difficult to satisfy. Thus the course of COMMON-LAW PLEADING was perilous. A claim or defense that did not GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PLEADING 515 exactly fit the requirements of the common-law FORMS OF ACTION was thrown out with no opportunity to amend it and come back into court. Some relief was offered by the courts of equity, which were not bound by the same complex system of pleading. Beginning in the fourteenth century, the authority of such courts increased in proportion to the rigidity of the common-law pleading. Equi ty was the con- science of the judicial system and was charged with doing complete justice regardless of technicalities. Cases were tried before a single judge without a jury, and the judge could allow different claims and various parties all in one proceeding. Some pretrial discovery of the other party’s evidence was permitted. The initia l pleading by a petitioner in equity was the bill, but states that in modern times have the same procedures for law and equity specify the complaint as the first pleading in all kinds of civil actions. Despite criticism, common-law pleading endured in England and in the United States for several centuries. Beginning in 1848, some states replaced it by law with a new system called CODE PLEADING. The statutes enacting code pleading abolished the old forms of action and set out a procedure that required the PLAINTIFF simply to state the facts in a complaint that warranted legal relief. A DEFENDANT was autho- rized to resist the plaintiff’s demand by denying the truth of the facts in the complaint or by stating new facts that defeated them. The defendant’s response is called an answer. In 1938 federal courts began using a modern system of pleading set out in the federal Rules of CIVIL PROCEDURE. This system has been so effective that many states have enacted substantially the same rules of pleading. A pleading by a plaintiff or defendant under these rules is intended simply to give the other party adequate notice of the claim or defense. This notice must give the adversary enough information so that she can determine the evidence that she wants to uncover during pretrial discovery and then adequately prepare for trial. Because of this underlying purpose, modern federal pleading is also called notice pleading. The other objectives of earlier kinds of pleading are accomplished by different proce- dural devices provided for in the Federal Rules of Civil Procedure. However, in antitrust and complex LITIGATION cases, the federal courts have debated whether more should be required from the plaintiff in terms of alleging more facts that required by Rule 8 of the federal Rules of Procedure. The SUPREME COURT,inBell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007), ruled that allegations of parallel business conduct accompanied by a bare assertion of CONSPIRACY are not sufficient to state an antitrust claim under Section 1 of the Sherman Act. This stricter pleading standard require specificity was a significant change in federal pleading practice. FURTHER READINGS Hepburn, Charles McGuffey. 2009. The Historical Develop- ment of Code Pleading in America and England. Charleston, S.C.: BiblioBazaar Kane, Mary Kay. 2007. Civil Procedure in a Nutshell. 6th ed. West Law School. CROSS REFERENCES Civil Procedure; Plea; Plea Bargaining. PLEBISCITE See REFERENDUM. PLEDGE A BAILMENT or delivery of PERSONAL PROPERTY to a creditor as security for a debt or for the performance of an act. Sometimes called bailment, pledges are a form of security to assure that a per son will repay a debt or perform an act under contract. In a pledge one person temporarily gives possession of property to another party. Pledges are typically used in securing loans, pawning property for cash, and guaran teeing that con- tracted work will be done. Every pledge has three parts: two separate parties, a debt or obligation, and a contract of pledge. The law of pledges is quite old, but in contemporary U.S. law it is governed in most states by the provisions for SECURED TRANSACTIONS in article 9 of the UNIFORM COMMERCIAL CODE. Pledges are different from sales. In a sale both possession and ownership of property are permanently transferred to the buyer. In a pledge only possession passes to a second party. The first party retains ownership of the property in question, while the second party takes possession of the property until the terms of the contract are satisfied. The second party must GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 516 PLEBISCITE also have a lien—or legal claim—upon the property in question. If the terms are not met, the second party can sell the property to satisfy the debt. Any excess profit from the sale must be paid to the debtor, or first party. But if the sale does not meet the amount of the debt, legal action may be necessary. A contract of pledge specifies what is owed, the property that shall be used as a pledge, and conditions for satisfying the debt or obligation. In a simple example, John asks to borrow $500 from Mary. Mary decides first that John will have to pledge his stereo as security that he will repay the debt by a specific time. In law John is called the pledgor, and Mary the pledgee. The stereo is referred to as pledged property. As in any common pledge contract, possession of the pledged property is transferred to the pledgee. At the same time, however, ownership (or title) of the pledged property remains with the pledgor. John gives the stereo to Mary, but he still legally owns it. If John repays the debt under the contractual agreement, Mary must return the stereo. But if he fails to pay, she can sell it to satisfy his debt. BE IT KNOWN, for value received, the undersigned __________________________ (Pledgor) of ________________________________ hereby deposits, delivers to and pledges with _____________________________ (Pledges) of__________________________________ as collateral security to secure the payment of the following described debt owning Pledges: The share of stock, described as __________ shares of stock of _______________________________________________ (Corporation) represented as Stock Certificates No(s). It is further agreed: 1. Pledgee may assign or transfer said debt and the collateral pledged hereunder to any third party. 2. In the event a stock dividend or further issue of stock in the Corporation is issued to the Pledgor, the Pledgor shall pledge said shares as additional collateral for the debt. 3. That during the term of thi s pledge agreement, and so long as it is not in default, the Pledgor shall have full rights to vote said shares and be entitled to all dividends income, except that stock dividends shall also be pledged. 4. That during the pendency of this agreement, the Pledgor shall not issue any proxy or assignment of rights to the pledged shares. 5. The Pledgor warrants and represents it has good title to the shares being pledge, they are free from liens and encumbrances or prior pledge, and the Pledgor has full authority to transfer said shares as collateral security. 6. Upon default of payment of the debt, or breach of this pledge agreement, the Pledgee or holder shall have full rights to foreclose on the pledged shares and exercise its rights as a secured party pursuant to Article 9 of the Uniform Commercial Code; and said rights being cumulative with any other rights the Pledgee or holder may have against the Pledgor. The Pledgor understands that upon foreclosure the pledged shares may be sold at public auction or public sale. The Pledgor shall be provided reasonable notice of any said intended sale and the Pledgor shall have full rights to redeem said shares at any time prior to said sale upon payment of the balance due hereunder, and accrued costs of collection. In the event the shares shall be sold for less than the amount then owing, the Pledgor shall be lia ble for any deficiency. Upon payment of the obligation for which the shares are pledged, the shares shall be returned to the Pledgor and this pledge agreement shall be terminated. This pledge agreement shall be binding upon and inure to the benefit of the parties, their successors, assigns and personal representatives. Upon default the Pledgor shall pay all reasonable attorneys' fees and cost of collections. Signed this _____________ day of __________________________________, 20____. ____________________________________________________ ______________________________________________________ Witness Pledgor ____________________________________________________ ______________________________ Witness Pledgor Pledge of Shares of Stock A sample pledge for shares of stock. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION PLEDGE 517 . course of COMMON -LAW PLEADING was perilous. A claim or defense that did not GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PLEADING 515 exactly fit the requirements of the common -law FORMS OF ACTION. Pledgor Pledge of Shares of Stock A sample pledge for shares of stock. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, . while the second party takes possession of the property until the terms of the contract are satisfied. The second party must GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 516 PLEBISCITE also have