What to expect if you accept a plea offer from the Prosecutor in a criminal case

Most cases end one of two ways: either the defendant pleads guilty or the case goes to trial and a verdict is entered.  If the Prosecutor offers a plea deal that would allow for a better result than the most likely result of a trial, your lawyer may advise you to accept a plea offer.  

Your lawyer is ethically obligated to convey any plea offer to you.  Your lawyer is also obligated to give you a professional opinion on what your best option is.  That is, your lawyer must tell you whether it better to take your case to trial or accept the plea offer being made.  You are not obligated to follow your lawyer’s advice and most skilled and experienced lawyers will respect your decision.  Your lawyer will analyze your case to figure out what the most likely outcome will be if it proceeds to trial. 

If you elect to plead guilty, you will need to appear before a judge to do that on the record.

If you choose to plea guilty, the Court is not required to accept your plea and it can only accept your plea of guilty if it has determined that you are acting knowingly and voluntarily.  

To make that determination, the Judge will ask you a series of questions in open court on the record. The Prosecutor will be there as well. You will be called up before the judge with your attorney and the stenographer will take down everything that is said.

Normally, the prosecutor will start by telling the Court that a plea bargain of some kind has been reached. They will recite the terms of the agreement and the judge will turn to you and your attorney and ask if you are ready to proceed with the plea deal as recited by the Prosecutor.

At this point you will be placed under oath, so your answers must be truthful.  While the judge is asking you these questions, you can ask to stop and speak with me at any point.  It is important that you understand what you are doing at all times. 

When you answer the Judge’s questions, it is important to be clear and to convey respect.   Answer any question from the judge with a simple, “Yes, your honor” or “No, your honor.”

Pay attention to your lawyer before you answer any question.  Your lawyer will be listening to make sure that the questions that are asked are correct and appropriate.  Give your lawyer a chance to voice any objections to any questions before you answer.  You can do that by pausing just one second before you begin to answer.  

Before you enter your plea, you will be asked for your name, address and phone number.  It is important to provide accurate information so that the Court can contact you with any questions.

The judge will then ask you questions like these (lifted from the Models found here):

WAIVED OR FORFEITED RIGHTS Trial by Jury Waived 

By pleading guilty, you waive the right to a trial by jury. Do you understand that? 

At a trial by jury you are presumed to be innocent, and you are entitled to the following rights: 

You have the right to be represented by your lawyer. 

You have the right to confront and cross-examine witnesses presented by the government. 

You have the right to remain silent and not to incriminate yourself. 

You have the right, but are not required, to call witnesses, and to testify yourself. 

Finally, you have the right to require the government to prove your guilt beyond a reasonable doubt to a jury of twelve people who must be unanimous in finding that you are guilty. 

Do you understand each of those rights, and that by pleading guilty, you give up each of those rights? 

Do you understand that by pleading guilty, you give up any defense you may have to these charges?

Do you understand that a plea of guilty is the same as a verdict of guilty rendered by a jury after a trial? 

Right to Appeal Waived 

In most cases, where a defendant is pleading guilty, some benefit, like a reduced charge or reduced sentence is being offered. In exchange for that benefit, the Prosecutor will ask you to waive your right to appeal.  The judge has to make sure that you know this. The Judge will ask:

Next, a defendant ordinarily retains the right to appeal even after pleading guilty.In this case, however, as a condition of the plea agreement, you are asked to waive your right to appeal. 

First, what is an appeal? An appeal is a proceeding before a higher court, an appellate court. If a defendant cannot afford the costs of an appeal or of a lawyer, the state will bear those costs. On an appeal, a defendant may, normally through his/her lawyer, argue that an error took place in this court which requires a modification or reversal of the conviction. A reversal would require either new proceedings in this court or a dismissal. Do you understand? 

By waiving your right to appeal, you do not give up your right to take an appeal by filing a notice of appeal with this court and the District Attorney within 30 days of the sentence. But, if you take an appeal, you are by this waiver giving up the right to have the appellate court consider most claims of error,and whether the sentence I impose, whatever it may be, is excessive and should be modified. As a result, the conviction by this plea and sentence will normally be final. Do you understand? 

Among the limited number of claims that will survive the waiver of the right to appeal are: a defendant’s competency to stand trial, a defendant’s constitutional right to a speedy trial,the voluntariness of this pleathe validity of this waiver, and the legality of the sentence. Do you understand?

Have you spoken to your lawyer about waiving your right to appeal? 

Are you willing to do so in return for the plea and sentence agreement? 

Do you waive your right to appeal voluntarily, of your own free will and choice? 

SENTENCE Authorized Sentence or Commitment 

Some judges will make a sentence commitment to a defendant so that you know what your sentence will be when you plead guilty.  Other judges will only tell a defendant what sentence they are “inclined” to impose.  Either way, the Judge is required to tell you what the possible sentence range is once you plead guilty.  The judge will also advise you if any post release supervision is required.

You should have a pretty good idea of what your sentence will be before you plead guilty.  You must be told what the worst case scenario is as well.

Do you understand? 

Deportation 

You have advised that you are a United States Citizen. Therefore, there is no danger of deportation from any conviction in this case.  Just in case, the Court will advise you that any non-citizen defendant is subject to deportation. 

Do you understand that if you are not a United States citizen, your plea of guilty will subject you to deportation, exclusion from the United States, and denial of naturalization? 

Do you understand that neither your attorney, nor I, nor anyone else can guarantee that you will not be deported, excluded from the United States or denied naturalization? 

If your deportation, exclusion from the United States or denial of naturalization is ordered, in whole or in part, because of this plea of guilty, you will not be permitted to have the plea set aside. So, if you plead guilty, it must be because you are guilty and you are receiving a benefit in the plea agreement, regardless of whether you are deported, excluded from the United States or denied naturalization. Do you understand? 

Do you, therefore, wish to plead guilty, regardless of whether the plea in whole or in part results in your deportation, exclusion from the United States or denial of naturalization? 

CONDITIONS OF RELEASE BEFORE SENTENCE 

A plea and sentence commitment may, but need not, be conditioned on the defendant fulfilling certain reasonable conditions. What follows are a number of approved conditions. Whether to impose a condition is within the sound discretion of the plea court. For that reason, the Judge will advise you of some or all of the following conditions:

There are conditions that you must comply with between now and the time of sentence. 

1. You must meet with the Probation Officer assigned to prepare your pre- sentence report. 

2. You must return to court when required.15 If you fail to return to court when required, I will be permitted to sentence you in your absence or issue a warrant for your arrest, and upon your arrest the sentence will be executed.

3. You must not commit any offense or unlawfully possess or use any drug between now and the time of sentence. You will be in violation of this last condition if, after you are provided an opportunity to be heard, I find, based upon an accusatory instrument, or evidence before a Grand Jury, [or a drug test,] or such other evidence as I deem appropriate, that there is probable cause and otherwise a legitimate basis to believe you committed an offense [or unlawfully possessed or used a drug].16 

4. Specify any special condition,e.g.:
(a) You must successfully complete an alcohol and/or drug treatment program.
(b) You must have a full time job or be in school full time.
(c) You must successfully fulfill the terms of the cooperation agreement. 

Do you understand each of those conditions? 

If you fail to comply with any one or more of those conditions, I will not be bound by the sentence commitment, I will not permit you to withdraw your plea(s) of guilty, and I will be at liberty to sentence you to [(specify); e.g.: any authorized sentence, including a sentence of imprisonment up to and including (specify)]. Do you understand? 

If it comes to pass that I impose a different sentence than the one I have committed to, your waiver of the right to appeal will apply to that sentence as well. Do you understand? 

VOLUNTARINESS 

To make sure you understand and you are doing this knowingly, the judge will ask you:

Other than the plea and sentence agreement, which has been placed on the record, has anyone made any other promise, commitment, or representation of any kind to you to get you to plead guilty? 

Has anyone threatened you, or forced you, or pressured you to plead guilty against your will? 

Have I, or your lawyer, or anyone else, said anything to you to have you plead guilty against your will? 

Are you therefore pleading guilty voluntarily, of your own free will and choice? 

Last question, do you understand that if you are ever convicted of another crime in the future, this conviction may be used against you to impose additional or different punishment for that new crime? 

The court finds that the defendant’s plea is knowing, intelligent and voluntary and, accordingly, accepts the plea and enters it upon the record. 

Guilty Plea

The judge will then recite the facts of the case and ask you how you wish to plea.  Most judges will simply read from the Complaint filed with the Court and ask if you admit to these allegations.  The Judge will then ask if you plead guilty.

The case will be adjourned 8 to 12 weeks for sentencing.  In more serious cases, you will be required to attend a Pre-Sentence Interview with the Probation Department.  The Probation Department will send you a letter at the address you provide to the Court.  

Felony Waiver

If you are charged with a Felony, regardless of what you plead guilty to, the Court may ask you to waive your right to an indictment.  If necessary, the Prosecutor may file a “Superior Court Information” which is the document that contains the charges you are to plea to.  So the judge will ask you to waive your right to an indictment and to agree to proceed with a plea to the charges in the Superior Court Information.  To do that, the Judge may ask:

Introduction to Waiver 

Your lawyer has said that you wish to proceed by way of a superior court information, rather than an indictment. A superior court information and an indictment are the same in that each is a written document that charges a person with a crime. The difference between the two documents is that an indictment is issued by a Grand Jury after the Grand Jury has received testimony and other evidence establishing that a person has committed a crime. A superior court information is issued by the District Attorney upon the consent of a defendant.Do you understand? 

Have you spoken with your lawyer about your case, about waiving your right to be prosecuted by an indictment, and about consenting to be prosecuted by a Superior Court Information? 

Are you satisfied with the services of your lawyer? 

Plea Agreement 

On waiving prosecution by indictment and agreeing to be prosecuted by a superior court information.

Waiver Form 


If you still wish to go forward with the waiver, you must sign the waiver form here in open court in the presence of the court and your counsel. That waiver form in essence specifies: 

That you have the right to be prosecuted by an indictment; 

That you waive such right and consent to be prosecuted by a superior court information; 

That the superior court information will have the same force and effect as an indictment; and 

That the superior court information will charge you with (specify names of crimes).

Do you understand? 

Please go over the waiver form with your lawyer. If it is acceptable, sign it, and Counsel will sign as witness. 

On the signing of the form: 

Let the record show that the defendant is signing the form here in open court in the presence of the court and that his attorney is signing as witness. 

Voluntariness 

Other than the plea agreement, has anyone made any other promise, commitment, or representation of any kind to you to get you to consent to prosecution by a superior court information? 

Has anyone threatened you, or forced you, or pressured you to consent against your will? 

Have I, or your lawyer, or anyone else said anything to you to have you consent against your will? 

Are you consenting therefore voluntarily, of your own free will and choice? 

Approval by the Court

The Court, being satisfied that the waiver complies with the law, and that the defendant’s waiver is knowing, intelligent and voluntary, approves the waiver, and signs the order accordingly.