When lawyers and defendants can't agree on an issue as fundamental as whether to plead or go to trial, it's normally the defendant's desire that prevails. Assuming that a defendant's decision is neither unethical nor illegal ("My decision is that you should bump off the prosecution witness"), the lawyer is the defendant's agent and must either carry out the defendant's decision or convince the judge to allow withdrawal from the case.
The Sixth Amendment provides that all criminal defendants have the right to assistance of counsel. And assistance means just that—the lawyer job's is to assist the defendant. While lawyers typically manage strategic decisions in a case (such as when to file a motion or make an objection at trial), certain decisions are reserved for the defendant even when they go against the advice of counsel.
Decisions that are up to the defendant include whether to:
(McCoy v. Louisiana, 584 U.S. ____ (2018).)
Defendants are in charge of fundamental decisions but that doesn't mean they should obstinately refuse their attorneys' advice. Defendants should ask questions to make sure that they understand the advice and why the lawyers think it's in their best interests before making a decision.
Given that most criminal cases end by plea bargaining, a key decision will often be whether to offer or accept a plea deal. Defense attorneys are ethically required to communicate all plea negotiations, including:
The defense attorney must communicate the offer or response, regardless of whether the attorney believes the prosecutor's offer is unacceptable or the defendant's offer won't be accepted.
Before making this important decision, a defendant is entitled to know what alternatives are reasonably available and, as far as can be predicted, the likely consequences of each. For example, assume that the defendant is charged with assault with a deadly weapon. The defense attorney tells the defendant, "The prosecutor is willing to accept a guilty plea to simple assault and recommend a sentence of six months in county jail and a fine of $500. The decision is yours—what do you want to do?"
The defendant and the attorney should readily identify at least three possible options:
And then, the defendant and attorney should discuss the likely consequences of each option. For example, the defendant might want to know:
One reason so many cases get resolved by plea bargain is that a deal provides (more) certainty for the defendant. If the prosecutor and defense make a deal and the judge agrees to it, the defendant will have a good idea of the outcome. With a trial, there's a much bigger risk of a tougher sentence. Uncertainty can weigh heavily on a criminal defendant.
Plea deals are also usually cheaper for defendants—not only in lawyer fees but also because a defendant might be able to get back to work more quickly. This factor can be especially important to the defendant sitting in jail awaiting trial.
A trial, on the other hand, might be the only way to get justice for the innocent defendant. Even for the not-so-innocent defendant, the odds of going to trial can be advantageous. The prosecutor must prove every element of the case beyond a reasonable doubt. If the case goes to a jury, the defense needs to only convince one juror (out of 12) that the prosecutor didn't meet this high burden to get an acquittal.
Just like the defendants weigh their options, so do prosecutors. Prosecutors typically have more resources available to them, but they are still aware of the costs, time, and difficulties of going to trial. Prosecutors must also abide by professional conduct rules. If a prosecutor doesn't believe the evidence would support a conviction beyond a reasonable doubt, the prosecutor shouldn't go to trial or accept a guilty plea.
Prosecutors need to evaluate the case as a whole, including: the strength of the evidence, the harm caused by the defendant, the impact on the public and victim, whether the punishment will fit the crime, and whether prosecution is a good use of public resources, among other considerations.
Defendants should not count on having perfect information about the likely consequences of each option. For instance, a defense attorney may have to respond to the second question above by saying, "It's really hard to predict what sentence you'll receive if you're convicted of assault with a deadly weapon. The judge to whom we've been assigned is very unpredictable, and a lot will depend on the recommendation in the probation report that will be prepared after you enter your plea."
Nevertheless, the attorney should provide as much information as possible on the likely consequences of all available options, so the defendant can make the best decision under the circumstances. Attorneys have a professional obligation to offer candid advice—their best professional judgment, not simply what defendants want to hear.
Ultimately, it's the defendant who gets to make the final decision, even if it conflicts with their attorney's advice. Occasionally, lawyers and defendants have such strongly opposing views that the lawyer cannot effectively carry out the defendant's desired strategy. In such a situation, the attorney may seek to withdraw as the defendant's counsel, or the defendant may seek to have the attorney replaced. Whether this will be permitted in either case depends on whether the prosecutor will be prejudiced or the proceedings will be unnecessarily delayed or disrupted.
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