A criminal defendant’s choice to go to trial, accept a guilty plea, or do something else.

A criminal defendant faces a confusing list of options to resolve a criminal charge: a jury trial, a trial to a judge (sometimes called a bench or court trial), a stipulated-facts trial (in which the defendant agrees to a set of facts or agrees that the state could prove certain facts), a conditional guilty plea, a guilty plea to all the charges (sometimes called a mercy plea or an open plea) a plea bargain (in which the state agrees to dismiss or reduce charges or make a favorable sentencing recommendation in exchange for a guilty plea) or a no-contest or Alford plea. Although defense counsel should offer advice about why one choice or the other is better, this choice remains the defendant’s to make, and, if the defendant cannot make a choice (because of mental illness or mental retardation, for instance) then the defendant isn’t competent to stand trial and can’t be convicted.

A jury trial is the default choice, and if the defendant does not clearly decide on one of the other options, the case will go to a jury trial. A jury trial is also my default advice; if I can’t see a clear reason to select one of the other options, I’ll recommend a jury trial. Jury trials provide the most opportunity for unexpected things to happen; a witness gets lost or forgets the trial date, a document disappears from a file, or the prosecutor’s office is understaffed and doesn’t have enough attorneys for all the trials that day. Those random elements usually favor the defense, and a significant number of good outcomes for the defense come from those unexpected events. Part of the defense attorney’s job is capitalizing on them.

A jury is also the most likely to acquit in an ordinary case. The state has to convince all the members of a six-person misdemeanor jury, or ten of the twelve members of a felony jury, to get a conviction. (By the way, that means that a felony conviction is easier for the state than a misdemeanor conviction, which seems backwards to me.) Juries are unpredictable, and every lawyer has a story about a jury reaching an unexpected decision, but that can go both ways – sometimes juries acquit people when the evidence is pretty strong, but sometimes juries convict when the evidence is pretty weak, too. I suppose that happens with judges on occasion, but it’s less likely. Juries also have the power to acquit a defendant whom they think is guilty but doesn’t deserve to be punished. This practice, called jury nullification, is strongly frowned upon by prosecutors, and even by some judges, but juries have an absolute and unreviewable power to decide the facts, and that includes the power to decline to believe whatever evidence the state presents. Judges see similar cases over and over (and have heard every excuse in the book) but a jury may never have seen a criminal trial before, and may see issues with the evidence, or with the fairness of the law at issue, that the judge does not. And the judge may have heard motions to suppress evidence or to exclude unduly prejudicial evidence about the defendant’s prior convictions, so the judge will know some things that are not legally admissible. In theory, judges are able to set those facts aside in reaching a decision, but, in practice, judges are people too.

If the defendant goes to trial and is convicted, the sentence will probably be worse than a plea bargain, and it might be worse than an open plea, no-contest plea, a stipulated-facts trial, or a bench trial, all of which take up much less time and don’t require empanelling a jury. A judge may, deliberately or subconsciously, increase a defendant’s sentence to punish the defendant for insisting on a jury trial – defense attorneys call this a trial tax. Some judges are careful not to impose a longer sentence following a jury trial, and few judges will impose a longer sentence when there was a legitimate question about guilt but the jury still convicted.

A trial to a judge may be a good idea if the defendant is technically innocent but unsympathetic. It may also be a good idea if a conviction is highly likely regardless of whether there is a jury but there is no plea offer. There is still a chance that a crucial witness or piece of evidence will be lost, but the trial tax is reduced.

A conditional guilty plea lets the defendant plead guilty but appeal and contest an earlier ruling by a judge, such as a ruling on a motion to suppress illegally-seized evidence. Because it is a guilty plea, it requires only a short hearing.

A stipulated-facts trial was a simple way to preserve a pre-trial ruling for appeal before conditional guilty pleas were adopted by statute a few years ago. It is still used for that purpose, but it is a trap for the unwary and sometimes attorneys recommend stipulated-facts trials but fail to preserve the desired issue for appeal. It can also be used when there is no dispute about what actually happened, but it is unclear whether the defendant is guilty in light of the facts.

A blind plea is a guilty plea to the all the charges, without receiving anything from the prosecutor in return. It might be a good choice when the prosecutor’s plea offer is unreasonably harsh, conviction is very likely, and the judge is likely to impose a shorter sentence than the prosecutor demands. It may also make sense when there is a single charge that cannot easily be reduced (because it is a crime with no less-serious version, or because the charge, like DUII cannot be reduced or dismissed by statute or by practice).

A no-contest plea, sometimes called an Alford plea, is an admission that the state could prove the defendant’s guilt, but not a direct admission by the defendant that he or she is actually guilty. In theory, it might prevent the plea from being used against the defendant in a civil trial, if the victim sues the defendant. It can also work when the defendant claims to be innocent but wants to take advantage of a favorable plea bargain or a blind plea.

The most common resolution of a criminal case is a plea bargain. The defendant agrees to plead guilty in exchange for something from the prosecutor, such as the dismissal of charges, a favorable sentencing recommendation, or an agreement not to bring additional charges. A plea-bargain usually involves a guilty plea, but it could be a conditional or no-contest plea, as well. Because the system is overworked, not every case can go to trial, and plea-bargains are the incentive for criminal defendants not to take every case to trial. Even if the defendant has a decent chance at trial, a plea-bargain may be a better choice; many people would prefer a six-month sentence to a fifty-fifty chance of winning at trial and the risk of a 12-15 month prison sentence otherwise, for instance. It’s hard to guess about the chances of winning (and I, like most attorneys, am very reluctant to give a percentage unless it’s one hundred or zero), but plea-bargains are usually about accepting a short, certain sentence over a possibility of a longer sentence.

This is a long and complex list of choices. Although it is the defendant’s to make, no one should be expected to choose without the assistance of skilled and knowledgeable defense counsel, and counsel’s role includes not only knowing the case and the law thoroughly, and giving good advice, but also explaining the options to the defendant and the reasons for them, so the defendant can make an voluntary, intelligent choice.