Clients often become concerned when they hear their attorney discuss plea deals soon after being retained. This concern is magnified when they go to court and hear the prosecutor and judge focus on pleading the case. Indeed, many clients believe that their defense attorney is trying to just get them to plead guilty so that the attorney can complete the case as quickly, and with as little effort, as possible, or that the judge is simply trying to get rid of their case by somehow forcing them to plead it out. None of this is true.
The fact is that the overwhelming majority of criminal cases in both state and federal courts throughout the country resolve by way of guilty plea. This is because our system is basically designed, at least initially, to plead cases. First, we do not have the resources to try every case. If every defendant proceeded to trial, it would break the system’s back. Further, it is not unusual for a defendant to find themselves in a position where the proofs in their case are such that a result reached by way of negotiated plea will be more favorable than one reached by way of jury verdict after trial. Moreover, if an attorney is devoting considerable time and effort to discussing plea deals, that means they are doing their job. It is the attorney’s obligation to be sure that the client understands all of their options, which include pleading the case out as opposed to going to trial. The judge hearing the case is going to expect that the defendant was so informed, and the ethics rules require it. With that said, if the client still wants a trial after listening to the attorney’s explanation of proposed plea deals, it is the client’s right to reject the plea deal and the attorney’s obligation to try the case.
These basic principles apply in all jurisdictions, although different courts implement them using their own unique procedures. For example, defendants in the federal system are required to complete and sign elaborate forms that describe their plea arrangement in some detail, and the judge taking the plea will review the contents of the form with them on the record at the plea hearing. The New Jersey Superior Court uses forms in criminal pleas that are even more detailed than those used in the federal system. Until recently, these forms were used only in adult criminal cases. Significantly, our Superior Court has now started requiring plea forms in juvenile cases. However, the New York State criminal courts do not use explanatory forms for plea deals, although the judge will explain the terms and conditions of any plea arrangement to the defendant on the record at the plea hearing.
Once a New Jersey court has accepted a defendant’s guilty plea, it is almost impossible for the defendant to rescind it. It is possible to move for an order vacating the plea. This motion can be made either before or after sentencing. The likelihood of success is greater if the motion is made before sentencing. However, because of the detailed nature of New Jersey’s plea forms, coupled with the colloquy at the plea hearing, there is rarely a basis to vacate the plea.
State v. Vasco, decided by our Supreme Court on October 30, 2018, represents an exception to this. The two most important aspects of any plea hearing are the defendant’s relinquishment of their constitutional rights including, without limitation, the right to a trial and everything that accompanies it, and an allocution or admission of the underling facts that make them guilty of the subject offense(s). In Vasco, the Court vacated the defendant’s plea because of an inadequate factual basis to support the guilty plea.
The Vasco Court recalled that the defendant must provide an adequate factual basis for the plea, and the court taking the plea must be convinced that the plea is being made knowingly and voluntarily. As to the allocution, the Court reaffirmed that a defendant must state facts that support each element of each offense to which s/he is pleading guilty. This means, among other things, that a defendant cannot just agree to the prosecutor’s version of the events underlying the relevant charge; rather, the defendant must admit that they committed the charged offense, and provide a factual statement that supports each element of the offense or acknowledge all of the facts that comprise each element of the offense. The plea must be vacated if the factual basis is lacking. This was the result in Vasco – the plea was vacated because the factual basis was inadequate.
One important practice pointer in connection with pleas is that some judges will allow the defense attorney to elicit the factual basis subject to follow-up questioning by the prosecutor, while other judges will insist on taking the factual basis themselves. Further, some judges will accept a factual basis that stems from leading questions asked of the defendant, while others will simply expect a defendant to respond to an open-ended question, such as “what makes you guilty.” Counsel should be aware of how a judge takes a factual basis, and should advise their client accordingly prior to the plea hearing.
James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey. Mr. Friedman represents defendants in criminal cases in the New Jersey Superior Court in all counties, all New Jersey municipal courts, the federal district courts located in New Jersey and New York City, and the New York State criminal courts located in Brooklyn and Manhattan. If you have criminal charges in one of these courts, call us for an initial consultation and a thorough explanation of all of your options.