Of course, in any lawyer/client relationship the people involved will determine who makes the decisions. However, in criminal cases there are two main decisions that only the client can make—
1. The decision to plead guilty or to demand a trial. Not only is this legally and ethically correct, but it makes common sense also: only the defendant knows for certain if he committed the crime or not. Therefore, he should be the one to make the decision to plead guilty.
Stemming from this, the client also has the decision to authorize his lawyer to negotiate with the prosecutor for the possibility of settling the case with a plea of guilty to some less serious offense. It’s known as “plea bargaining” and, at the end of any negotiations, once again, it’s the decision of the defendant to plead guilty to the less serious charge or to reject the offer and go to trial.
2. The defendant also makes the decision, if he wants a trial, that it be heard by a jury or by a judge without a jury. This choice comes from the Bill of Rights in the Constitution that gives an accused the right to “a jury of his peers.” Therefore, the defendant makes this decision.
In my many years of representing defendants, I always give them these decisions. Often, a client will ask me if they should plead guilty or not—requiring me to make the decision. I’ve never done that. I always force them to confront the case and make the decision. After all, they know if they’re guilty or not—I never know for sure.
When it comes to a jury or a judge for trial, I can offer a lot of advice to a defendant. For instance, several years ago, I represented a young man who had been charged with first degree murder and transferred to adult court. He was facing a life sentence without parole—he’d never get out of prison before he died. He was the accomplice in a brutal, senseless execution of two people who were robbed for money.
When he asked me about a jury or a judge, I suggested that he consider going with a judge. I was worried that a jury would be so offended by the facts of the case (even though my client was not the shooter) they would react by convicting him rather than weighing the evidence of his minor role in the murders. A judge who had heard dozens of horrible cases like this one, might be more willing to look deeper at the legal issues involved.
My client agreed, he waived a jury, and we tried the case before a judge.
The judge found the young man guilty but of a reduced degree of homicide. He still had to go to prison but only for about eight years. In that case, the defendant’s decision worked to his benefit.
On the other hand, if a defendant tells me he did the crime but still wants a trial, I always suggest a jury—there’s a small chance the jury might feel sorry for the accused and give him a break.