The decision to go to trial or to take a plea is a critical one. It is one of the most important, if not the most important, decision you will make in your case; and it is a decision that can only be made by you and you alone. Of course, you will have an experienced defense attorney to give you sound advice, but ultimately you are the person who has to make the decision.
Like most things with the law, the decision to plead or go to trial depends on the circumstances of your case. Those circumstance include the relative strength of the prosecution’s case compared to your defense, the availability of witnesses and facts that support a not guilty verdict, and your prior criminal record.
That said, the trial-or-plea decision, stripped to its essence, can be visualized as two ends of a spectrum with “Predictability of Outcome” on one side, and “Possibility of Not Guilty Verdict” on the other.
Let us discuss these opposing forces more closely.
Predictability of Outcome
1. The Good: Certainty
Accepting a plea agreement has the virtue of certainty. If you make a plea agreement in lieu of going to trial, then you can predict what your sentence will most likely be. (Note well: The judge has the ultimate say on a person’s sentence, regardless of what the plea agreement says. Of course, 99.9% of the time a judge will abide by the plea and sentence agreed to by the parties, but a judge has the discretion to sentence you to something other than the plea agreement. We will talk more about this in a later section).
The predictability of the outcome of your case is, therefore, relatively certain if you accept a plea offer. In addition, the predictability of how much you need to pay your lawyer (if you do not have a public defender) is an added piece of certainty to a plea agreement. In short, you can predict the outcome of your case and your legal bills if you accept a plea offer.
2. The Bad: A Criminal Record
There are two sides to every coin. The price you must pay for certainty, for your ability to predict the outcome with a plea agreement, is that you will definitely end up with a criminal record if you accept a plea offer. If you have priors, then a criminal record might not be a major consideration for you in the trial-plea decision. If you have no criminal record, though, the idea of a plea agreement may not be as attractive. Furthermore, you want your attorney to let you know whether or not the charge that the government wants you to plead to can be expunged.
Possibility of a Not Guilty Verdict
1. The Good: Your Case is Dismissed with No Criminal Liability
As you would expect, taking a plea offer will take the possibility of a “not guilty” verdict off of the table for you. Here is where an assessment of the facts and circumstances of your case become vitally important. If you feel that you are truly innocent and want justice, if you feel that the prosecution’s case is weak and you have strong defenses, or if you feel that you have a good chance on a suppression motion because the cops violated your constitutional rights, then going to trial might be worth it. Being found “not guilty” means that you have no criminal liability whatsoever.
In addition, there are cases in which the prosecution makes a plea offer that is so unreasonable that it simply makes more sense to try your luck at trial.
2. The Bad: A Trial is Truly a "Roll of the Dice"
Sadly, we do not live in a world that is fair. We may always strive to be fair, but the reality is that a criminal trial can go either way, even if you are completely innocent.
There are so many factors at play in a trial, from the quality of the attorneys and the perceived strength of the evidence, to the credibility of the witnesses and the community that makes up the jury pool. That is why everyone in the criminal justice system refers to a criminal trial as a “roll of the dice.” It is a gamble.
Thus, the outcome of a trial cannot be predicted, and you should be wary of attorneys who tell you differently. The level of certainty you gain with a plea agreement is equal to the level of uncertainty that comes with going to trial.
To conclude, the decision to go to trial or take a plea should not be taken lightly. You, with the advice of your attorney and trusted family and friends, should weigh all of the factors in the case when making this important decision.
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