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Nolo Contendere William L NORTH CAROLINA LAW REVIEW Volume 30 | Number 4 Article 11 6-1-1952 Criminal Law -- Pleas and Defenses -- Nolo Contendere William L. Mills Jr. Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation William L. Mills Jr., Criminal Law -- Pleas and Defenses -- Nolo Contendere, 30 N.C. L. Rev. 407 (1952). Available at: http://scholarship.law.unc.edu/nclr/vol30/iss4/11 This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. 1952] NOTES AND COMMENTS liance is usually placed upon the so-called "right of privacy"'31 or "right 3 2 to be let alone." The conflict is not a new one. Heraclitus of Ephesus wrote, in 500 B.C.: "The major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes license."3 3 The Pollak case demonstrates once more the interpretive pliability of our Constitution in dealing with that problem-whatever the setting. The Bill of Rights "can keep up with anything an advertising man or an electronics engineer can think of."3 4 L. K. FuRGusON, JR. Criminal Law-Pleas and Defenses-Nolo Contendere Answers to a recent inquiry directed to many of the solicitors and judges of North Carolina reveal an astonishing variety of opinions as to the significance of the plea of nolo contendere. 1 There are almost "See Zeni, Wiretapping-The Right of Privacy versusr the Public Interest, 40 J. Calm. L. 476 (1949). "See Sidis v. F-R Pub. Corp., 113 F. 2d 806 (2d Cir.), cert. denied, 311 U. S. 711 (1940) ; and Jones v. Herald Post Co., 230 Ky. 227, Is S. W. 2d 972 (1929). ",The "right of privacy" has been defined as "the right to live one's life in seclusion, without being subjected to unwarranted and undesired publicity. In short, it is the right to be left alone." Rhodes v. Graham, 238 Ky. 225, 228, 37 S. W. 2d 46, 47 (1931). " Justice Jackson uses this phrase in his dissent in the Murdock case, supra at 166. " Quoted by Palmer in Liberty and Order: Conflict and Reconciliation, 32 A. B. A. J.731, 732 (1946). "'Pollak et al. v. Public Utilities Comm'n of D. C., 191 F. 2d 450, 456 (D. C. Cir. 1951). In "determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of govern- ment they undertook to carry out for the indefinite future and in all the vicissi- tudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses." United States v. Classic, 313 U. S. 299, 316 (1941). "In considering this question, then, we must never forget that it is a constitution we are expounding." M'Culloch v. Maryland, 4 Wheat. 316, 407 (U. S.1819). Addendum: The supreme court opinion reversing the court of appeals in the Pollak case was handed down after this note went to press. 20 L. W. 4343, May 26, 1952. 1 In November, 1952, the editor of this REvIEw wrote fifty-five judges and solicitors of the recorder's and superior courts and requested that they send the REviEw a statement setting forth their opinion (without any research) as to the significance, essential requirements, and effects of the plea nolo contendere as used in North Carolina. We wish to express our appreciation to the twenty judges and solicitors who replied to this request for their contribution to this note. In these twenty replies, some fifty-nine or sixty different points of view were expressed. The differences between some of the views are only shaded, but the opinions on some points are diametrically opposed to the law as laid down by the supreme court. Some of the views which do not seem to have judicial sanction are as follows: "I have never looked into the law but have depended upon a general impression"; "I am not guilty but cannot contend with the State"; the defendant "is. therefore. admitting that the evidence is sufficient to warrant a conviction, although he is rather weakly saying that he is not admitting he is guilty"; "the defendant says NORTH CAROLINA LAW REVIEW [Vol. 30 as many impressions as there are individuals. Some said the plea is an admission of the facts and charges; others said the plea is an admission of nothing. Some said that the same punishment would result from a plea of nolo contendere as would result from a plea of guilty; others said there are many advantages to the plea. Still others said the plea is equivalent to a plea of guilty, while others said the State must prove its case beyond a reasonable doubt once the plea of nolo contendere is entered.2 This variety of impressions was not altogether unexpected in view of the limited and sometimes indefinite treatment of the plea nolo con- tendere by the supreme court.3 This discrepancy in concepts by the trial courts necessarily results in a mutifarious application of the law. in effect that in his own mind there is justification for his acts or omissions, of which the State complains, but he does not wish to contend with the Solicitor"; "a 'gentleman's plea of guilty'"; "defendants who avail themselves of the plea . enter such plea as a 'face saver.' They consider this plea as more respectable"; "defense lawyers sometimes believe that it sounds better to their clients or that the psychological effect is better"; "a plea of this type somewhat negatives the sting of a plea of guilty, and leaves the public with a little better impression"; the defendant is "asking for the presentation of the evidence with the purpose and thought in mind of showing mitigation"; "this technical plea lets the Judge hear the facts and pass upon the merits of the case"; "I consider it to be a plea of guilty conditioned upon the evidence for the State being legally sufficient to sus- tain a verdict of guilty"; "I have always required the State to prove its case after a plea of nolo contendere"; the plea "carries the requirement that the state make out its case against the defendant beyond a reasonable doubt before the defendant is adjudged guilty"; "when the facts produced by the State are not legally suffi- cient to support a verdict of guilty, I find the defendant not guilty upon the plea"; "at the conclusion of State's evidence if I felt that the State has failed to prove its case I enter a verdict of not guilty"; "too many trial judges . seem to accept such a plea as a plea of guilty. I have always required the State to prove its case after a plea of nolo contendere"; "solicitors uniformly accept the plea when tendered"; "I have almost always accepted pleas of nolo contendere when offered; and I have never noticed that the form of the plea has made any differ- ence in the punishment or otherwise"; "the major effect of an attorney entering a plea of nolo contendere would be to protect the defendant's right in a trial when counsel is unable to produce a legitimate defense and where there is a possibility that a defense may be developed either factually or technically from the State's evidence"; "The plea of Nolo Contendere is often used, without sanction of law, as a time saving device in criminal procedure"; "Where the facts in a criminal case are not in dispute, or, if in dispute, the State's case is weak or frivolous, and defendant is willing to accept the Court's version of the law or reaction to the facts, the defendant will sometimes enter his plea of Nolo Contendere and abide the judgment of the Court-hoping that the Court will exercise his dis- cretion to permit the plea to be withdrawn, and further hoping that upon intima- tion of the Court the Solicitor will take a Nolle Prosequi or suffer a directed verdict of Not Guilty. This device of course saves time and is generally looked upon by the Court with favor"; and "This plea is quite frequently used when both the Solicitor and defendant's counsel are willing for the Court to hear the facts without the intervention of a jury. In such instance an agreement will be reached that the defendant will enter a plea of nolo contendere and let the Judge hear the facts. If the Judge is of the opinion that the facts are sufficient to indi- cate that the defendant is guilty the plea will stand as entered. If the Judge is of a contrary opinion the plea will be stricken out and a no pros will be taken. This use of the plea quite often expedites the work of the Court." 2 Ibid. ' See cases cited in footnotes 44 through 55 infra. 1952] NOTES AND COMMENTS At early common law the formal plea non vidt, or nolo contendere, was referred to as an implied confession.' While English authority is somewhat scant, such as is seems consistently to agree that the plea of nolo contendere amounted to an implied confession of guilt.5 There was also agreement that the plea was permissible only in cases where the indictment was for an offense less than capital ;6 that it could be " LAMBARD, EiRENARCHA: OR OF The Office of the Justices of Peace 511 (4th revised, 1599) (This manual published in London 353 years ago cites Year Book entries relative to the plea in both the ninth and eleventh year of the reign of Henry IV (1407 and 1409).
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