Criminal Defense of Immigrants


§ 8.5 C. Client's Decision

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After full investigation by counsel, and full discussion between counsel and client, the final decision whether to accept a plea bargain rests with the client:


                The decision whether to plead guilty or to contest a criminal cuarge is ordinarily the most important single decision in any criminal case.  This decision must ultimately be left to the client’s wishes.  Counsel cannot plead a client guilty, or not guilty, against the client’s will.[10]


Counsel must therefore conduct a very careful discussion with the client to aid the client in the decision whether to accept a plea agreement or take the case to trial.  See § § 3.11, et seq., supra.


                Professor Herman has suggested that during plea bargaining, defense counsel should advise the client of the following:


                (1)  the defendant’s right and decision to accept the plea offer or take the case to trial;


                (2)  the merits of the prosecution’s case, the possible defenses and motions, the applicable law, and a candid assessment of the probable result of the trial;


                (3)  the general process of plea bargaining and defense counsel’s particular bargaining strategy in this case;


                (4)  all offers made by the prosecution, what they mean, and their relative merits;


                (5)  all of the consequences and ramifications of a particular plea, including possible sentences and effects on probation, parole eligibility, immigration status, and the like;


                (6)  the process of entry of the plea;


                (7)  any allocution required prior to the court’s acceptance of the plea; and


                (8)  the process of taking the case to trial, if the defendant were to choose this option.[11]

[10] A. Amsterdam, I Trial Manual for the Defense of Criminal Cases [201], p. 339 (1988), citing Jones v. Barnes, 463 U.S. 745, 751, 753 n.6 (1983) (dictum).

[11] G. Herman, Plea Bargaining § 3:03, pp. 21-22 (2d ed. 2004).