Missouri v. Frye: Attorneys Must Discuss Plea Bargain Offers With Criminal Defendants

Under the Sixth Amendment criminal defendants are guaranteed the right to effective assistance of counsel. In the case of Missouri v. Frye, the U.S. Supreme Court held that effective assistance means that defense counsel must communicate offers for plea bargains to the defendants.

In the summer of 2007 Frye was charged with driving with a revoked license. Frye had been convicted of that same offense three times, so he was now charged with a felony punishable by up to four years in prison.

Frye’s defense counsel received a letter from the prosecutor offering two potential plea bargains. The first offer was a plea to the original felony charge with a recommendation that Frye serve 10 days in jail. The second offer was to reduce the felony charge to a misdemeanor, with the recommendation of a 90 day sentence, out of a possible one year maximum sentence. The letter contained the condition that both offers would expire within two months. Frye was never advised of the offers by his attorney.

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Frye then plead guilty with no plea agreement and was sentenced to three years in prison with no probation. Frye appealed for post-conviction relief, arguing that he was denied the effective assistance of counsel when his attorney failed to inform him of the plea offers.

The Sixth Amendment provides that a defendant has the right to the assistance of counsel at all critical stages of criminal proceedings, which at the time of this case include the arraignment, post-indictment interrogations and lineups, and the entry of a guilty plea. To make out a claim for ineffective assistance of counsel, a defendant must show first that counsel had been ineffective and second that the ineffective assistance resulted in prejudice to the defendant’s case.

The issue in this case is whether the Sixth Amendment right to effective counsel includes plea negotiations.

In the recent case of Padilla v. Kentucky, the Court ruled that defense lawyers must advise non-citizen defendants of the immigration consequences of a guilty plea, noting that the plea bargain negotiation is a critical phase of the process. The Court in that case rejected the idea that a knowing and voluntary plea negates the ineffective assistance of counsel up to that point.

Related: Padilla v. Kentucky: New Rules For Attorney Representing Non-citizen Criminal Defendants

In support of its case that deficient counsel during the plea bargain phase should not have Sixth Amendment implications, the State of Missouri distinguished the present case from Padilla. Padilla involved incorrect advice by counsel regarding pleas whereas in the instant case the plea made by Frye involved accurate advice and information at the time it was entered. Moreover, plea bargain negotiations do not involve formal court proceedings, and discussions regarding pleas between counsel and defendant are confidential and protected by privilege. The State also pointed out that there is no right to a plea bargain at all.

The Court noted the persuasiveness of the State’s arguments but ultimately rejected them due to the reality of the modern court system, which is that the plea bargain process is integral to the administration of criminal justice. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. A guarantee of a fair trial does not protect against inadequate assistance during the plea bargain negotiation phase, because modern criminal justice is not a system of trials but a system of plea bargains. To not require effective assistance during the pretrial phase would be to deny criminal defendants meaningful assistance at the time when the effective assistance is needed most.

The Court therefore held that defense counsel has a duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the defendant. Failure to do so will be considered the ineffective assistance of counsel. The Court declined to rule more specifically as to an attorney’s duties during the plea bargain negotiations, as plea negotiations are an art in itself, just like trial advocacy.

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