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Legal Memorandum: Rescission of a Plea Agreement

Issue: Under the laws of Alabama, in prosecuting a suit, may the state rescind an agreement it has made concerning the handling of a criminal prosecution or plea?

Area of Law: Ethics & Professional Responsibility, Litigation & Procedure
Keywords: Criminal prosecution or plea agreement; Rescission
Jurisdiction: Alabama
Cited Cases: 437 So. 2d 1330
Cited Statutes: Canon 1, Alabama Code of Professional Responsibility
Date: 07/01/2007

The Alabama Supreme Court has stated that though the state does not have to enter into an agreement, once the state does make an agreement “it should not be allowed to repudiate that agreement with impunity.”  Ex parte Yarber, 437 So. 2d 1330, 1335-36 (Ala 1983).  The reason for this is that a defendant will be less likely to make an agreement with the state “if he knows the very agreement he must consider is subject to unilateral speculation by the state.  If [a court allows] the state to dishonor at will the agreements it enters into, the result could only serve to weaken the plea negotiating system.  Such a result also is inconsistent with the ‘honesty and integrity’ encouraged by Canon 1, Alabama Code of Professional Responsibility.”  Id. at 1335-36.

Although the Yarber court’s comments were made in the context of a plea agreement, the rationale may apply equally to the State’s agreement in other instant cases.  There may be policy reasons involved that are similar to those underlying the plea agreement context.  A defense attorney will be reluctant to make any agreement with the State, if the agreement is “subject to unilateral speculation by the state.”  Id.  This reluctance by the defense bar will be detrimental to the smooth working of the criminal justice system.  Furthermore, a DA changing his mind after an agreement has been made is contrary to the honesty and integrity encouraged by the Alabama Rules of Professional […]

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