Can a judge advise me whether to plead guilty?

Generally, no. In federal and most state courts judicial participation in plea bargaining is forbidden.

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 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,” since 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Participation of a judge in a plea negotiation can result in a plea being withdrawn, which essentially means that the plea never happened; at that point the parties can negotiate a new plea or the case can go to trial. In some states judicial interference with a plea negotiation results in the plea being withdrawn automatically.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 ruled that the misconduct had to have affected the defendant’s decision in order to allow for withdrawal of the plea. Mr. Davila pleaded guilty three months after the judge’s improper conduct, which the Supreme Court reasoned was 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 it is possible that he could have withdrawn his plea.