Which decisions are up to the client?

Standard 4-5.2 of the ABA Criminal Justice Standards identifies decisions that defendants are entitled to make, after consultation with their attorneys. They include:

  • what plea to enter (usually, guilty or not guilty)
  • whether to accept a plea bargain
  • whether to waive a jury trial
  • whether to testify at trial, and
  • whether to appeal.

Decisions about these matters are entrusted to clients not only because the matters are important, but also because lawyers normally have time to consult with their clients before the decisions are made. “Consultation” is a key term. Before making any decision, defendants should insist on meeting with their attorneys to review their options and the likely consequences of each.

Example: Solomon, an Armenian national, is charged with selling illegal drugs and is considering whether to plead guilty. This is his decision to make. Because he is a noncitizen, however, Solomon’s attorney has to advise him that if he pleads guilty, he is subject to deportation. (Padilla v. Kentucky, 559 U.S. 356 (2010).

For more on this topic, see In a criminal case, how much control does the defendant have over strategy? and Should a lawyer involve the client in important decisions?

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