The prosecution and the defense in a criminal case likely will reach a plea bargain, in which the defendant pleads guilty or no contest in exchange for a reduction in the charge or sentence, or another benefit. Once the two sides reach an agreement, they will schedule a hearing at which they will present the proposed plea deal to the judge. The judge will decide whether to accept, modify, or reject the deal. (Read more here about the judge’s decision-making process.)
In the event that some form of the deal is accepted, the judge will hear the plea in open court and sentence the defendant. This may happen at a special hearing if the defendant is in custody, but otherwise the plea probably will go on the record at the next scheduled hearing. Sentencing may occur at the same hearing, or it may occur at a later date for some defendants charged with serious crimes.
Questioning by the Judge
If the judge decides that a plea bargain is objectively fair, they still need to make sure that the defendant actually committed the crime that is the subject of the guilty or no contest plea. This involves a conversation between the judge and the defendant, in which the defendant will need to admit under oath certain facts that show their guilt. In this conversation, the judge also needs to make sure that the guilty plea is knowing and intelligent. The defendant must understand the rights that they are waiving, such as the right to a jury trial, the right to confront the prosecution’s witnesses, and protections against self-incrimination. If the defendant is not represented at this stage, they will need to waive the right to counsel. They also must understand the charges and their obligations under the plea agreement, including the sentence that will be imposed. The defendant should be aware of the range of sentences that they could receive if the case went to trial.
In cases involving foreign nationals, defendants will need to affirm that they understand that a conviction could lead to deportation.
Most of the time, this conversation is straightforward. Defendants typically respond with a simple “yes” to each of the judge’s questions, after which the judge accepts the plea bargain. If the bargain does not provide for a specific sentence, the judge may seek various opinions before determining the sentence, such as those of the prosecutor, the probation officer, the crime victim, and the attorney of the defendant, if they are represented.
When Pleas are Not Knowing and Intelligent
A defendant may be able to get a conviction removed from their record if it resulted from a plea that was not knowing and intelligent. This usually occurs if they did not have counsel, and the record suggests that they did not understand the consequences of the plea. Even if the conviction cannot be completely removed from their record, it may be withdrawn from consideration in sentencing for later offenses. This can dramatically reduce the prison term or other penalties that a defendant may face.
If the plea is found to have been knowing and intelligent, even if the defendant was unrepresented, the conviction usually can be considered in sentencing decisions for later crimes, just as if the defendant had been convicted after a trial. If the defendant went to prison after entering the plea, the conviction may not be taken into account.