Can defendants plead guilty to different crimes than those they committed?

The system sometimes allows for fictional pleading.

Defendants occasionally plead guilty to crimes that they haven’t committed—and that the prosecution knows they didn’t commit. This isn’t some kind of illogical criminal justicie phenomenon, but rather a calculated meeting of the minds. In many of these situations, the prosecution and defense have agreed that the defendant will enter a guilty or no-contest plea to a less serious charge than has been alleged. Lawyers sometimes call this kind of negotiation “fictional pleading.” Some prosecutor offices have either official or informal policies against fictional pleading, while others will engage in it depending on the circumstances. Some judges won’t approve a “fictional” plea deal, but many will. (But see Does a judge have to confirm that the defendant committed the crime before accepting a guilty plea? Also see Can the Judge Reject My Plea Deal?)

Example: Namond walks into the local convenience store. He throws a couple candy bars in his pockets, then grabs a soda. He presents the soda to the store clerk and pays for it, but keeps the candy bars hidden. He strolls out of the store without having paid for them. Officer Colvin had been standing in the corner of the store in street clothes and had seen Namond’s act. After he arrests Namond, the prosecution charges the latter with shoplifting, a crime that involves removing merchandise from a store without paying for it. But in order to give Namond a better chance at straightening up by keeping a theft conviction off his record, the prosecution agrees to a guilty plea for trespassing, which involves entering property without permission. Even though Namond isn’t technically guilty of the agreed-upon crime, it’s probably in his best interest to accept the deal.

Talk to a Lawyer

Start here to find criminal defense lawyers near you.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you