Criminal Law

Entering a Plea to Criminal Charges

By Micah Schwartzbach, Attorney
Learn about some kinds of pleas in criminal cases—including "not guilty" and "guilty"—and the processes involved.

In general, the decision of which plea to enter to criminal charges is a defendant’s to make. It’s ultimately up to the person charged—not the prosecutor, the defense attorney, or anyone else—to decide how to plead. A defendant is always best served, though, to have an attorney before and when entering a plea, and to consider what that lawyer has to say about all aspects of the case.

Read on for general information about pleading to criminal charges. Keep in mind that it’s critical to have a lawyer when facing charges for many reasons, including the fact that defendants appearing in court on their own can inadvertently waive certain claims. Sometimes, the only chance to make particular technical objections—however rare those objections might be—is before the defendant enters even a not-guilty plea.

Pleading Not Guilty

“Not guilty” is often the first plea entered in court. A plea of not guilty leaves the burden of proving the case against the defendant beyond a reasonable doubt with the government. Of course, that burden lifts if the defendant later pleads guilty or no contest rather than going to trial.

Defense attorneys can make some court appearances without defendants having to appear, and they can sometimes enter not-guilty pleas on behalf of their clients. The theory behind allowing a plea of not guilty by an attorney is that such a plea doesn’t harm the defendant’s interests and can always be changed in the future.

Refusing to Plead

Every once in a while, a defendant refuses to enter any kind of plea to criminal charges. In that kind of situation, the judge presiding over the case is typically entitled to enter a plea of not guilty on the defendant’s behalf and keep the proceedings moving. Again, the idea is that the not-guilty plea doesn’t hurt the defendant and that the defendant can always change it.

Pleading Guilty

In most jurisdictions, the defendant must usually appear in person in order to enter a guilty plea, especially if the charge is a felony. Pleading guilty is obviously a big step in the proceedings; it means the defendant is waiving constitutional rights and prepared to accept punishment.

Plea Bargaining

A plea bargain is an agreement—courts sometimes describe it as a contract—between the prosecution and the defense. The defendant agrees to plead guilty or no contest to a charge or charges in exchange for something from the government, like dismissal of other charges and potential leniency in punishment. A defendant has a right to the effective assistance of counsel not only at trial, but also during the plea bargaining stage.

In most jurisdictions, a judge can’t accept a guilty plea unless there’s a “factual basis” for it. The idea is that the court should have to make sure that the plea is fair by confirming in some way that there’s evidence that the defendant actually committed the crime. In the occasional instance where a judge doesn’t think there’s a factual basis, the judge’s options might include moving the case on toward trial, finding the defendant guilty of a lesser offense, or dismissing the charge.

Although they routinely accept plea bargains, judges do get to decide whether to reject them. Importantly, though, they normally have to document a legitimate basis to reject any plea bargain. One reason a judge might be able to reject a plea bargain is a belief that the sentence it would lead to would be too lenient.

“Knowing, Voluntary, and Intelligent” Guilty Pleas

In order for a guilty plea to be valid, the judge must establish that the defendant made it while understanding the basics of the case and the rights involved in the proceedings, and without being coerced by anyone. Courts often describe this requirement with the terminology “voluntary, knowing, and intelligent.”

Many factors are relevant in determining whether a plea is voluntary, knowing, and intelligent. They can include:

  • the defendant’s intelligence
  • the seriousness or complexity of the charges
  • the defendant’s age and experience
  • whether the defendant has a lawyer
  • the lawyer’s competence, and
  • the time the defendant has had to consult with the lawyer.

Before accepting a guilty plea, the judge engages the defendant in a “colloquy”—a one-on-one exchange in open court, where the defendant has to answer questions about the decision to plead and the rights at stake. The judge usually has to ask whether the accused understands a bunch of circumstances, including:

  • the charges
  • the consequences of the plea
  • the maximum penalty, and
  • the fact that a guilty plea waives several constitutional rights, including the rights to a jury trial, to question witnesses, and to not incriminate oneself.

A defendant who later establishes that the plea wasn’t knowing, voluntary, and intelligent can normally withdraw it.

Guilty-Plea Consequences

Judges normally don’t have to tell defendants about all possible consequences of a guilty plea. These officials have to explain “direct” consequences, which can include any mandatory minimum sentence, the amount of any fines, and any requirement of post-release supervision. (Judges generally don’t have to give a heads-up about the exact sentences they will impose, but rather the punishment that is possible.)

“Collateral” consequences that judges might not have to alert defendants to can include eligibility for parole, losing the right to vote, potential immigration consequences, and registration requirements (like having to register as a sex offender).

Note that a misrepresentation about a collateral consequence—by the judge or defense attorney—can invalidate a guilty plea. An example of such a misrepresentation could be wrongly telling the defendant that a conviction won’t result in deportation.

Talking to an Attorney

If you’ve been charged with a crime, make sure to consult a lawyer as soon as you can. An experienced criminal defense attorney should be able to explain the applicable laws and procedures, including whether you even have to enter a plea at an upcoming court appearance.

Also talk to an attorney if you pleaded guilty or no contest to a crime and want to know whether you can withdraw your plea. (If part of your argument might be that you received ineffective assistance of counsel from a lawyer, talk to a different lawyer.)

If you’ve already been convicted of a crime and have questions or concerns, consider speaking with a criminal defense attorney specializing in appeals.

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