“Should I take a Plea or Go to Trial” is one of the most frequent questions clients ask after their case gets past through initial stages and the prosecutor offers a plea deal. It is a question our attorneys have answered hundreds, if not thousands of times. Here is some guidance gathered on both sides of the court room – both as prosecutors and as criminal defense lawyers – when it comes to advising clients whether to take a plea or go to trial.

Whose Decision Is it Whether You Take a Plea or Go To Trial?

Decision whether to take a plea or go to trial is entirely yours. Not your attorney’s, not your spouse’s, not your parents. Whether to take a plea or go to trial is your decision. It is yours and yours alone. At the end of the day, if your case goes sideways and you get convicted, it is you and you alone that will be serving the prison term, dealing with a probation officer or paying back restitution.

How Do You Make that Decision?

Whether to go to trial or take a plea is a very personal decision. It is unique to you and the evidence in your case. Criminal Defense

1. Learn Your Case

Before you start thinking about whether to take a plea or go to trial, you need to learn your case. Not casually flip through the pages, but actually take the time to read every single piece of discovery, watch every single video and listen to every single wire tap. Take notes, write down question for your attorney.

The question isn’t are you guilty of the crime, the question is can the Government prove that you are guilty. And not just a little bit guilty, but guilty beyond a reasonable doubt of each and every element of the crime. That’s not an easy burden by any stretch of the imagination, but it is not insurmountable. As you look at the discovery, don’t be overwhelmed by the sheer number of documents. Dedicate some time each day, even if it’s only 30 minutes to review everything.

The worst thing for a criminal defense trial attorney is when we care more about the case than the client. While you may not have gone to law school, or passed the bar, you need to be your own case expert. This is the only way you will be making an informed decision about whether to take a plea or go to trial. You can’t rely on your attorney, you need to take personal ownership of your case and read every single document.

In New York State as well as in federal cases, you get the discovery well in advance of trial, with the exception of 3500 Material on federal cases. Take your time. Pace yourself. Learn your case.

2. Schedule a Meeting With Your Attorney to Go Over Discovery

It’s not enough for you to review the discovery by yourself. You also need to go over the discovery with your attorney. Not necessarily page by page, but you need to have an in-person meeting with a few hours set aside to obtain your attorney’s opinion about the discovery. You should be asking your attorney dozens of questions about the discovery. For example,

• Some pieces of evidence may be inadmissible – what is your attorney’s plan to deal with them?
• Other pieces of evidence may be too prejudicial. Does your lawyer plan on filing a motion in limine to get them precluded?
• Are there certain charges that the judge will surely dismiss at the end of the Government’s case?

Your meeting shouldn’t be in the hallway outside the courtroom right before court. It also shouldn’t be over coffee in between your lawyer’s court appearances. You deserve a long meeting to go over all of your concerns about your case to help you decide whether to take a plea or go to trial.

3. Review the Elements of the Charges Against You

If you are charged with a felony, the charging instrument on your case will be the indictment which was returned by the Grand Jury. If you are charged with a misdemeanor, the charging instrument will be a criminal court complaint (eventually converted to an information). You need to review each and every charge on either the complaint or the indictment and figure out which piece of evidence from your discovery will be used to establish each element.

A good place to start understanding your charges is the Jury Instructions. In New York state cases, all jury instructions come from New York Pattern Jury Instructions, called Criminal Jury instructions (commonly abbreviated as “CJI”). Criminal Jury Instructions break up each charge into elements and are exactly what the judge will read to the jury to explain the charges on your case. As you decide on whether to take a plea or go to trial, reviewing the jury instructions will help you understand what legal instruction the jury will receive before they deliberate on your case.

4. Know Your Exposure at Trial and Collateral Consequences

Before you decide on whether to take the plea or go to trial, it is essential that you understand both the worst case scenario and the realistic outcome of your trial. Each charge has a minimum and the maximum sentence that you can receive. Your lawyer should explain to you what range you are facing on each charge if you are convicted at trial. Your attorney should also explain to you the positives and the negatives of the plea that you are taking:

• Will you have a criminal record?
• Will you have to do jail time, be on probation, parole or post release supervision?
• Will there be any monetary penalties – fines, restitution, forfeiture?
• Will there be any collateral consequences – like issues with immigration or SORA Registration.

You should also have answers for these questions as they relate to a potential conviction after trial. Although your attorney can’t promise what sentence you will receive if you are to be convicted at trial, your attorney should be able to tell you whether what you are convicted of and sentenced to will be better than what the plea offer is.

For example, let’s say you are being charged with Assault in the First Degree, a Class B violent felony, the sentencing range for which is 5 to 25 years. The prosecutor offers you a plea to a lesser charge – Assault in the Second Degree, a Class D violent felony, with probation. Your attorney should be able to tell you that if you are convicted of the most serious charge at trial – Assault in the First Degree, there is absolutely no way that you are getting probation. That is because the sentencing range is 5 to 25 years. Probation is not a possible sentence on Assault in the First Degree charge.

5. Understand the Trial Strategy and Chances of Success

What we’ve learned in trying dozens of cases to verdict, is that oftentimes it’s not enough to argue to the Jury that the prosecutor did not prove the case beyond a reasonable doubt. Jurors are real people and they need real explanations, or alternative theories as to why something happened. As to why our client is not the person who committed the crime. As to why the police got the wrong guy.

As you may know, you have the option to have the judge decide your case of the jury. If you are choosing a jury trial, the jury verdict needs to be unanimous. That means that every juror needs to agree on the verdict. Six out of six jurors need to agree for misdemeanor cases and twelve out of twelve jurors need to agree for felony cases.

If your sole reason for going to trial is the hope that one juror won’t convict because of personal beliefs, rather than lack of evidence, really think your reasoning through. Trials and juries are unpredictable. While people who choose not to convict because of their personal beliefs do sometimes make it onto the trial jury, the chances of that happening are probably less than 1%. Additionally, if the jury cannot reach a unanimous verdict, the case doesn’t end there. The prosecutor both in state court and in federal court is able to retry the case an infinite number of times until the jury reaches a verdict. So before deciding to go to trial over taking a plea on the hope of not getting a unanimous jury, think it through.

Before deciding to go to trial over taking a plea, you need to know what your attorney’s trial plan is. Is it the dismissal of the top charge to get you a lower sentencing range? Is it knocking out the charge that’s subject to Sex Offender Registration Act? Make sure you understand what the trial plan is. Generally speaking, we tell clients whether they have a boxer’s chance at trial, meaning no matter now slim the possibility, we have a potential defense.

In other situations, we are frank with our clients in telling them that it is virtually impossible to win the case at trial, no matter how excellent our lawyering and gamesmanship may be. Ultimately, it is the client’s decision on whether to go to trial, even if we don’t believe we have a viable defense at trial.

6. Ask about a Mitigation Report or a Pre-Sentencing Submission

In deciding whether to take a plea or go to trial, it is important to consider whether your attorney did everything possible on your behalf to get you the bargain basement plea offer. In assessing whether to take a plea or go to trial, it is essential that your attorney left no stone unturned when it comes to negotiating the best possible deal.

• Did your attorney prepare a pre-pleading memorandum (sometimes called pre-pleading information, or PPI) on your behalf to bring mitigating circumstances to the District Attorney’s attention?
• Did your attorney explore the angle of cooperation, either to obtain you a federal 5K1.1 cooperation letter or a plea to a different charge on a New York State case?
• Did your attorney file motion seeking to dismiss the top change of the indictment on your New York State case?
• Did your attorney explore dismissals of your case for violations of speedy trial time (either under the Speedy Trial Act for federal cases, or New York Criminal Procedure Law Section 30.30) or pre-indictment delay?
• Did your attorney consider bringing you in for a meeting with the government or a safety valve proffer on a federal case?

Only once you confirm that everything possible has been done to obtain you the best possible deal, can you be in a position to consider whether to take the plea or go to trial on your case.

7. Listen to Your Attorney, But Make Your Own Decision

Once again, the decision to take a plea or go to trial is entirely yours. Regardless of your prior criminal history or previous contacts with the criminal justice system, your attorney is essential in helping you reach the decision of whether to take a plea or go to trial. You have to think of your attorney as the bumper that goes up in the bowling lane, blocking the gutter. Your attorney is there to keep you on track and to ensure that your case doesn’t go off the rails. Ultimately, it is entirely your decision whether to take a plea or go to trial.

8. Retain Separate Counsel for a Second Opinion

If you are doubting your attorney’s advice or simply would like a second opinion on whether to go to trial or take a plea, please contact us. Although not frequently spoken about, it is a very common practice to hire a second law firm for the sole purpose of reviewing discovery and providing an opinion regarding the viability of winning at trial. Kindly contact us if we can be of any assistance with your decision on whether to take a plea or go to trial.