Our findings show that the forms (a) are highly variable in their content, (b) exceed the reading comprehension of most defendants, and (c) are available more often to adult than to juvenile defendants. The ToP forms were coded for several items concerning knowledge and voluntariness including rights waived, direct and collateral consequences, and capacity. Using content analysis and comprehensibility measures, we examined a national sample of 208 tender-of-plea forms for both juvenile and adult defendants to determine what information they contained and their level of comprehensibility. ToP forms are written instruments that inquire into whether the defendant understands and appreciates the plea decision and is capable of entering it. Here, we address a mode that to our knowledge has previously not been systematically examined-tender-of-plea (ToP) forms. The information the defendant relies on to make a knowing, voluntary, and intelligent plea decision may be conveyed to the defendant through several modes, including but not limited to communication with defense counsel. To be constitutionally valid, guilty pleas must be knowing, voluntary, and intelligent. Court instruction on the immigration consequences of criminal activity is thus necessary in order to: (1) secure well-informed pleas by non-citizen defendants and (2) conserve the limited resources of the criminal justice system.The overwhelming majority of criminal convictions in the United States are obtained through guilty pleas. Given the vast deference afforded to defense counsel under the ineffective assistance of counsel inquiry, a mere policing of defense counsel's duty will not actually result in added protections for non-citizen defendants. Standing alone, Padilla's holding is not robust enough to safeguard the interests of non-citizen defendants the holding is deliberately limited to clear cases involving only the adverse immigration consequence of deportation. Taking these considerations into account, in Part III I will thus introduce model language for new criminal rules of procedure that would impose a duty upon courts to inform all criminal defendants of immigration consequences at plea colloquy. Although Padilla does not mandate that trial courts re-assess the language of their plea colloquy warnings, a changed duty on the part of defense counsel will realistically lead to a changed duty on the part of trial courts. This is especially true in light of the fact that a trial court's assessment of the validity of a plea is conditioned on the quality of assistance provided by defense counsel. However, in light of the Supreme Court's cabining of deportation as a unique consequence, the altered legal duty of defense counsel post-Padilla necessarily calls for a re-examination of the legal duty of trial courts as well. Padilla merely addressed the duty of defense counsel to provide constitutionally effective assistance before plea colloquy and did not reach the question of whether a trial court's duty at plea colloquy need be altered as well. Part II then addresses the legal duties imposed on both defense counsel and trial courts in relation to plea colloquy. Part I addresses the overlap of criminal and immigration law, arguing that the increased use of the criminal justice system to police federal immigration laws calls for greater protection of non-citizen defendants at plea colloquy. This Note argues for the passage of criminal procedure rules that would require judges to warn criminal defendants about immigration consequences at plea colloquy.
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