Can the judge advise me whether to plead guilty?

For the most part, judges don't get too involved in plea bargains.

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Generally, judges can't advise defendants as to whether they should plead guilty. In federal and most state courts, judicial participation in plea bargaining is forbidden.

(For more on this topic, see Where does plea bargaining take place?)

A guilty plea is supposed to be voluntary, meaning that the defendant shouldn’t be forced or pressured into pleading guilty by anyone, including a judge. Also, a defendant has a right to a trial, and it’s improper for a judge to coerce a defendant into giving up that right for the sake of efficiency. If a judge intervenes in a plea negotiation, then a defendant might feel obligated to take the judge’s advice or risk displeasing the judge. Part of a judge’s job is to make sure that the defendant’s guilty plea is voluntary by being an objective observer of the process, which would be difficult if the judge was directly involved in the plea bargain.

What’s Not Allowed

The U.S. Supreme Court addressed an example of improper judicial conduct in plea negotiation in U.S. v. Davila. (133 S.Ct. 2139 (2013).) In that case, the judge advised the defendant to plead guilty to save the court’s time and to get a better sentence. He told the defendant to “come to the cross” and “tell it all.” The Supreme Court considered this conduct “beyond the pale,” as the judge egregiously broke the rule against participating in a plea negotiation.

It’s important to note that while in federal court and in most state courts any participation by a judge in plea negotiations is forbidden, a few states allow some judicial involvement. In these states, a judge helping a defendant to weigh options or to make a rational decision is acceptable. But even in these states, any coercion on the part of the judge isn’t allowed.

What Happens If a Judge Improperly Advises Me?

Participation of a judge in a plea negotiation can result in a plea being withdrawn, which essentially means that the plea never happened; at that point the parties can negotiate a new plea or the case can go to trial. In some states judicial interference with a plea negotiation results in the plea being withdrawn automatically. But in most states and in federal court, a reviewing court will look at the extent of the judge’s impropriety as well as what impact the judge’s actions had on the defendant’s decision. In other words, a court will decide on a case-by-case basis if a defendant can withdraw a plea.

One factor a court will consider in evaluating the impact of a judge’s conduct is the length of time between the interference and the defendant’s plea. For example, in Davila, even though the judge’s conduct was highly improper, the Supreme Court said that plea withdrawal was available only if the misconduct affected the defendant’s decision. Mr. Davila pleaded guilty three months after the judge’s improper conduct, which the Supreme Court considered enough time for him to talk to other people and consider his options. The Court said that the length of time between the two events diminished the potential impact of the judge’s conduct. If, however, Davila had taken the plea deal directly after the judge’s interference, then he might have been able to withdraw his plea.

Talk to a Lawyer

Talk to an experienced criminal defense lawyer if you want to know the extent to which a judge might get involved in a plea bargain in your case. A knowledgeable lawyer will be able to fully advise you of the applicable law and your options. Such an attorney should be able to explain the rules and customs—which differ from place to place—in the court in question.

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