Plead or Go to Trial: Who Decides? How to Decide?

When lawyers and defendants can't agree about 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.

Fundamental Decisions Reserved for the Defendant

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. Those decisions include whether to:

• plead guilty or go to trial
• have a bench or jury trial
• testify on one's own behalf
• assert one's innocence, or
• forgo an appeal.

(McCoy v. Louisiana, 584 U. S. ____ (2018).)

Making the Decision: Trial or Plead Guilty

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.

Communicating All Offers

As most cases end by pleading guilty, a key decision will often be whether to offer or accept a plea bargain. Defense attorneys are ethically required to communicate all plea negotiations, including:

• relaying their client's offer to plead to the prosecutor, and
• relaying the prosecutor's offer to accept a particular plea to their client.

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.

Consider the Options and Potential Consequences

Before making an 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's response should be something like, "Let's see what my options are and try to figure out the likely consequences of each one." Here, the defendant and the attorney should readily identify at least three possible options:

• plead guilty now
• plead guilty later, or
• refuse to plead guilty and go to trial.

Before making a decision, the defendant and attorney should discuss the likely consequences of each option. For example, the defendant may ask questions such as:

• "Is there a chance that I'll get a better deal if I wait until closer to the trial to plead guilty?"
• "What sentence am I likely to receive if I go to trial and I'm convicted of assault with a deadly weapon?"
• "I'm trying to get a job. Do you think a conviction for assault with a deadly weapon will look worse than one for plain assault?"

Seek Information and Advice

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.

Not Following Your Lawyer's Advice: Can the Lawyer Withdraw?

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.