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GUILTY PLEA WHERE DEFENDANT DOESN'T REMEMBER THE INCIDENT--NORGAARD - MN Bench Book - Trial Procedures & Practices for Judges
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GUILTY PLEA WHERE DEFENDANT DOESN'T REMEMBER THE INCIDENT--NORGAARD

From MN Bench Book - Trial Procedures & Practices for Judges

A Norgaard Plea[1] is where the defendant is incapable of admitting the facts that constitute the crime to which he is pleading guilty to because he was too intoxicated at the time of the event to remember the event. The factors to consider are the same as in an Alford Plea. Norgaard pleas typically occur when the defendant does not have sufficient memory, in most cases because of an alcoholic blackout, of the incident that resulted in the criminal charge(s).

Factors to consider in Norgaard Plea situations are:

1. IS THE PLEA INTELLIGENTLY, KNOWINGLY AND VOLUNTARILY MADE?
The defendant should be asked on the record why he or she is desires to plead guilty. The defendant should also be questioned directly regarding whether he or she understands all the legal implications of the plea.
2. IS THE PLEA BASED ON THE TRIAL COURT'S ANALYSIS OF THE FACTUAL BASIS?
The plea, like any other, still requires a sufficient factual basis; but that basis can be obtained from sources other than the defendant. The record should clearly reflect that the plea is voluntary and represents an intelligent choice of alternatives available to the defendant.
3. CAN THE COURT REASONABLY CONCLUDE THAT THE EVIDENCE PRESENTED (THROUGH POLICE REPORTS AND OR OTHER CHARGING DOCUMENTS) WOULD SUPPORT A JURY VERDICT OF GUILTY BEYOND A REASONABLE DOUBT?
The judge should be especially careful to assure that an independent factual basis, in fact, exists, and that the defendant reasonably believes that the record establishes that the evidence against the defendant is sufficient to persuade the defendant and counsel that the defendant is guilty and would be convicted by a jury if the jury heard the stipulated to evidence.


QUESTIONS TO BE ASKED OF DEFENDANT FOR NORGAARD PLEA IN ADDITION TO WAIVER OF ALL TRIAL RIGHTS

  1. Have you read the police report?
  2. Do you have any recollection of the events referred to in it?
  3. Were you intoxicated at the time of the events referred to in the police report?
  4. Do you have any reason to doubt the accuracy of the statements in police report?
  5. Do you understand that if you went to trial before a judge or a jury:
A. You would be presumed innocent
B. The state would have to prove your guilt beyond a reasonable doubt,
C. The jury's verdict would have to be unanimous, all members of the jury would have to agree that you are guilty,
D. The state would produce testimony and other evidence that you;
Did the following (include statements summarizing the evidence the state has)
E. You could call witnesses to testify for you,
F. You could testify if you wanted to,
G. You have an absolutely right not to testify, If you did not testify, no one could comment on your not testifying
  1. Do you believe that if you went to trial you would be found guilty by the jury if the jury believed the state's witnesses testifying as I just stated and didn’t believe your witnesses and you if choose to testify?
  2. Are you pleading guilty to obtain the benefit of the plea bargain offered by the prosecutor?

Note is legally insufficient for the defendant to say he "he might be found guilty" or "he probably would be found guilty" The defendant must believe and state that he believes he would be found guilty.

References:

  1. State ex rel Norgaard v. Tahash, 261 Minn. 106, 110 N.W.2d 867 (1961).