When charged with a crime, defendants will enter a statement before the court—a plea—in response to the charges filed against them. They may enter a plea of guilty (a complete admission of guilt), not guilty (denial of the charges), or nolo contendere (not agreeing or disagreeing with the charges).

Defendants may choose between going to trial or avoiding trial by entering into a plea agreement with the prosecution in lieu of a reduced charge. A reduced charge often leads to a lighter sentence. Defendants also will enter a plea agreement when they believe the evidence against them will ensure a conviction or they wish to avoid the limelight of a trial.

What is the Process for Approving a Plea?

Before a plea becomes enforceable in a federal criminal case, the court must approve it pursuant to the Federal Rules of Criminal Procedure, specifically, Rule 11 concerning pleas.

The court may approve the plea agreement only after the defendant has been advised of their rights, the court has been assured the plea is voluntarily and that it was entered into with sufficient factual support. This rule specifically requires that the court:

  • Advise and Question the Defendant About the Plea Agreement: Under oath, the court will require that the defendant demonstrate that they fully understand their constitutional rights (i.e. to a trial, against self-incrimination, the right to confront their accuser), they will be waiving these rights, the nature of the charges against them, and they will be sentenced for the charges in connection with the plea.
  • Ensure the Plea is Entered into Voluntarily: Once a defendant enters into a plea agreement, it is difficult to withdraw that plea. Therefore, in addition to making sure that the defendant understands the exact charges and what their constitutional rights are, it is the court’s duty to make sure that the defendant is knowingly entering the plea of their own free will.
    • The court must establish that that the defendant has entered the plea to the charges without force, threats or promises--other than those contained in the plea agreement.
  • Determine the Factual Basis for the Plea: The rule also requires that the court determine whether there is a factual basis for the plea.
    • For example, if a defendant enters a plea for murder when the facts clearly only establish a basis for involuntary manslaughter, a judge may decide to reject the plea.

Can I Withdraw a Plea?

It is very difficult to withdraw a plea, which is why the court carefully questions the defendant’s understanding of the plea before approving it. The court has approved the defendant’s plea because it believes the defendant entered into it voluntary and with full understanding of the consequences for doing so. As a result, a defendant may seek to “withdraw” a plea under federal law only in the following limited circumstances:

  • Before It has been Accepted by the Judge: Until the court approves the plea agreement,  the defendant can choose to withdraw the plea for any reason.
  • For a “Fair and Just Reason” before Sentencing has Occurred: Here, it isn’t always enough to argue that the court is sentencing the defendant for a longer term than agreed to in the plea bargain. You can’t also claim that you had a change of heart.
    • Typically, the court will consider scenarios where the defendant had ineffective assistance of counsel, was threatened into entering the plea agreement, was innocent of the charges, or entered into the agreement involuntarily.
  • After Sentencing has Occurred: The most difficult stage for the defendant to nullify a plea is after the precautionary hearing and after the court has imposed sentencing. In this case, rather than ordering a withdrawal, the  court will permit a plea to be “set aside” on direct appeal or collateral attack.

Let’s examine this in practice. Tim appears before the court on several drug charges. Having determined Tim’s plea is voluntary, the court decides to sentence Tim to the full twenty years allowed under the statute instead of the fifteen years recommended by the prosecution. But Tim later seeks to withdraw the plea and proceed to trial. The court may decline to allow Tim to withdraw the plea in these circumstances.

However, if Tim’s lawyer signed off on the plea agreement without properly explaining the charges or what a guilty plea means, then the judge may find the plea was entered into involuntarily in violation of Tim’s constitutional rights. If the facts also show that Tim was threatened by the prosecution,  the judge may similarly find that Tim’s plea was involuntary.

What if Tim did not make a deal for a lesser sentence as he believed that he would be acquitted? If he was handed down a harsh sentence from the court, then he cannot suddenly withdraw his plea and alter it (whether the original plea was guilty or not guilty).

There were many opportunities for Tim to withdraw his plea. But if the court believes not withdrawing Tim’s plea would result in injustice, then they may allow the plea to be set aside. However, this is not a common occurrence and defendants should not wait until after sentencing to withdraw their plea.

Should I Consult with an Attorney If I Want to Withdraw My Guilty Plea?

You should consult with a local criminal attorney before you enter into any plea agreement and before entering your plea in court. Once the plea is approved by the court, there are very limited circumstances in which your plea can be reversed.