Unless the State agrees to dismiss the charge (or the judge orders that the charge be dismissed), New Jersey allows persons accused of commiting an offense two options: Plead guilty, or plead not guilty. If the charged person pleads not guilty, there is a trial. At the trial, the State has the burden of proving the charge against the defendant. The level of proof is proof beyond a reasonable doubt. The State's burden applies to every element of the offense. If the State satisfies this burden, the defendant is convicted. If the State fails to satisfy this burden as to one or more of the elements of the offense, the defendant is acquitted.

In point of fact, most charges are not resolved by trial. Rather, most charges are resolved by a guilty plea. In this guilty plea, the defendant tells the judge that s/he did whatever it is that s/he is pleading guilty to. The defendant admits to every element of the charge.

When a defendant pleads guilty s/he spares the State from the burden of proving guilty. The effect of pleading guilty is the same as if the person had gone to trial and been found guilty. The person will have a record of a criminal conviction. In point of fact, the vast majority of charges are resolved by a guilty plea, not by a trial.

Given that the effect of a guilty plea is the same as if the person went to trial and was found guilty, why plead guilty at all? Why not put the State to its proofs? After all, despite the apparent strength of the State's case, sometimes things happen. Maybe a necessary witness does not come to court. Sometimes a witness gives unexpected testimony. And sometimes through skilled advocacy, the jury returns a verdict of not guilty.

Pleading guilty is often a rational choice. The guilty plea is usually accompanied by some benefit provided by the State. This benefit can involve the dismissal of other charges. It can involve an agreement of a particular sentence, or that the sentence be limited. And, of course, the guilty plea avoids the uncertainty and the expense of trial.

The pressures upon a person charged with an offense to plead guilty are enormous. The first pressures are the potential penalties. The penalties to which the accused individual are exposed are formidable. Then there's the financial cost of going to trial (unless the person is represented by the Office of the Public Defender). That cost is staggering. “Players” in the system often have their own reasons for subtly adding to those pressures. In the abstract, the judge may not care whether the case ends with a guilty finding or a dismissal. The judge is, however, very interested in keeping his/her case inventory low. The only way this can happen is if the vast majority of charged individuals do, in fact, plead guilty.

The mechanics of pleading guilty involve a hearing before the judge assigned to the case. The hearing includes a colloquy. “Colloquy” is, basically, a twenty-five cent word meaning conversation. One of the participants to the conversation is the defendant. The other participant can be the defendant's lawyer, or the prosecutor, or the judge, or some combination of the three. The defendant is placed under oath. While under oath, the defendant tells the judge that s/he is pleading guilty and that, in fact, s/he is guilty of the charge. The defendant tells the judge what s/he did that makes him/her guilty. Because the defendant is under oath during this colloquy, the defendant must plead guilty only if, in fact, s/he actually is guilty. Ethical lawyers will participate in entry of a guilty plea only when the lawyer is satisfied that the client is indeed guilty, or may be.

On the subject of ethics, it is totally ethical to plead not guilty even when the defendant actually committed the charged crime. Guilty or not guilty, the defendant has every right to proceed to trial and make the State prove its case. And the defendant has every right to have his/her lawyer use his/her best efforts to keep the State from establishing the required proofs. Even when the lawyer knows that the defendant has committed the charged crime. The lawyer must, however, comply with applicable rules of ethics in providing this defense. Thus, for example, the lawyer cannot elicit testimony from a witness when the lawyer know that the witness is going to commit perjury.

The decision to plead guilty or not guilty is one that only the defendant can make. The lawyer has an obligation to analyze the entire case--its strangths and its weaknesses--in order to assist the client in making that decision. Ultimately, however, the client decides. Once the client has decided, it becomes the lawyer's obligation to implement that decision in the manner most favorable (or least unfavorable) to the client as possible but, again, only within the bounds of all applicable rules of ethics.

Guilty pleas, once entered, can sometimes be withdrawn. However, the ability to withdraw the guilty plea is by no means guaranteed. The New Jersey court rule that governs withdrawal of guilty pleas is R. 3:21-1. That rule says:

A motion to withdraw a plea of guilty or non vult shall be made before sentence, but the court may permit it to be made thereafter to correct a manifest injustice.


Factors the judge will consider on an application to withdraw include the reasons for wanting to withdraw the plea; whether the person has already been sentenced; whether there is a credible claim of factual innocence; and prejudice to the State if the application is granted. An application to withdraw a guilty plea will typically be approved if the client can establish that the factual basis provided upon entry of the plea was inadequate.

When the judge refuses a defendant's motion to withdraw a guilty plea, that refusal can be appealed. Unless the defendantNJ criminal defense trial lawyer Middlesex County obtains a stay, whatever sentence the judge imposed will be in effect while the appeal works it way through the court. When that sentence included a jail or prison term, a good portion of that term may have already been served by the time the appeal is decided. This is a factor the defendant needs to consider in deciding whether or not to appeal the judge's refusal.

Court rules provide one additional mechanism to withdraw a guilty plea. That mechanism is called post-conviction relief (“PCR”). Criminal Lawyers in New Jersey discuss PCR elsewhere on this site.

Allan Marain is a New Jersey criminal defense lawyer. He has tried numerous cases, both jury and non-jury. He knows his way around. He can provide solid advice to clients anguishing over this decision to plead guilty or to go to trial. Call him.


 Overview  |  Allan Marain  |  Norman Epting, Jr.  |  The Practice  |  Selecting a Lawyer 
 Trial Transcript  |  Jobs and Internships 

 Abandoned Cars  |  Aiding Suicide  |  Animal Cruelty  |  Appeals  |  Arson  |  Assault  |  Bad Checks  |  Bribery  |  Burglary 
 CDS in Vehicle  |  Cell Phones  |  Child Pornography  |  Cocaine  |  Computer Crimes 
 Conditional Dismissal  |  Conspiracy  |  Credit Card Fraud  |  Drug Crimes  |  Drug Deaths  |  DWI/DUI 
 Eluding  |  Endangering  |  Entrapment  |  Evidence  |  Expungements  |  False Swearing 
 Federal Appeals  |  Federal Crimes  |  Fictitious Reports  |  Forgery  |  Graves Act  |  Guilty Pleas  |  Gun Law  |  Harassment 
 Hazing  |  Homicide  |  Identity Theft  |  Insurance Fraud  |  Invasion of Privacy  |  Jury Service  |  Juvenile Delinquency 
 Kidnapping  |  Leaving the Scene  |  Lewdness  |  Mail Fraud  |  Manslaughter  |  Marijuana  |  Megan's Law 
 Miranda Warnings  |  Money Laundering  |  Municipal Court  |  Murder  |  NERA  |  No Insurance  |  Official Misconduct 
 PCR  |  Peeping Tom  |  Perjury  |  Point Assessments  |  Police Misconduct  |  Possession  |  Probation  |  Prostitution 
 PTI  |  Receiving Stolen P'ty  |  Red Light Cameras  |  Refusals  |  Resisting Arrest  |  Revoked List  |  Robbery 
 Sexual Assault  |  Shoplifting  |  Stalking  |  Street Crimes  |  Tax Crimes--Federal  |  Tax Crimes--NJ 
 Terroristic Threats  |  Theft  |  Theft by Deception  |  Theft of Services  |  Traffic Offenses 
 Unauth'd Prac Law  |  Underage Drinking  |  Underage Gambling  |  Urinating in Public 
 Vehicular Homicide  |  Violation of Probation  |  Weapons Possession  |  White Collar Crimes  |  Wire Fraud 

 Discrimination  |  Domestic Violence  |  Drivers Licenses  |  Excessive Force  |  Freedom of Speech 
 Personal Injury  |  Whistleblowers 

 Case Review  |  Super Links  |  Merge Left  |  Directions  |  Poker Portal  |  How Did We Do?  |  Collatz Conjecture  |  PGP Public Key 

 The Bottom Line