Is Trial Your Last Resort?


I sometimes hear defenders talk about trial as “the last resort” in a criminal case. I prefer to think of a jury trial as the default resolution of any criminal case, and of a guilty plea (with its abandonment of constitutional rights) as the last resort, to be engaged in only if the chances of prevailing at trial are so small that they’re not worth the risk of losing.

What do you think? let me know in comments.

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0 responses to “Is Trial Your Last Resort?”

  1. I try not to think of it as a last resort but instead as if it’s my job to get my client the best plea offer I can and that if it’s not what he or she wants, then I better be ready for trial.

    In fact, I had a case once in which the prosecutor turned to me after the jury was seated and said, “Alright, I’ll recommend six months if your client still wants that.” That was a number my client came up with himself and he was smart to take it, in that case at least, as he was looking at up to 18 months and our chances weren’t very good.

    Probably the best way to get the best plea offer on the table is to think of trial as a “first resort.” I’ve noticed that the lawyers who do this and who are known as well prepped at trial tend to get the best plea offers anyway.

  2. Negotiating from a position of strength is fundamental, and that strength comes from the willingness and ability to try a case.

    But Mark’s point (an excellent point, by the way) is that the default position should be to go to trial. That should be in your head from day 1, and never leaves unless and until a better alternative for your client presents itself.

    Too many attorneys take a case (as reflected by the fee) with the intention of pleading the client out at the first opportunity. Some will hold out for a decent plea, but will ultimately take a plea because they can’t, or won’t, try the case. These attorneys will never have the leverage of a lawyer who is known by all to be ready, willing and able to go to trial. They are the “deep threat,” while the “plead ’em and weep” guys are no threat at all.

  3. I agree with the “Trial First, Plea Second” mentality. I don’t think you can effectively represent someone if you haven’t prepared for trial until the weekend before the trial setting. Throughout the course of the case’s life, there has to be investigation into everything. Whether it is checking the “facts” as the police have presented them, researching the law as applied to your client, or double-checking the state’s only witness to find out he was a three-time felon on parole and by saying he saw my client when he did would have amounted to a curfew violation and thus sent him back probably (and yes this really happened), you can never be too prepared for trial. And preparing for trial late is not preparing for trial.
    I think our clients expect T.V. Justice. That is, they want their attorney to defend them at trial and get someone else to admit to the crime…and JFK if possible. The problem is that never happens. But what does happen between initial meeting with client and trial date is preparation. It is what separates the lawyer who practices criminal law and the criminal defense attorney.

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