Defendants will enter a statement before the court—a plea—in response to the charges filed against them when charged with a crime. 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 place 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 under 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 and the court has been assured the plea is voluntarily 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. In addition to making sure that the defendant understands the exact charges and their constitutional rights, the court must make sure that the defendant is knowingly entering the plea of their own free will.
    • The court must establish the defendant has entered the plea 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 a factual basis for the plea.
    • For example, if a defendant enters a plea for murder when the facts only establish a basis for involuntary manslaughter, a judge may decide to reject the plea.

Can I Withdraw a Plea?

It is complicated 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 voluntarily and with a 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 the judge has accepted it: 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: 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 agreed involuntarily.
  • After sentencing: The most challenging stage for the defendant to nullify a plea is after the precautionary hearing and 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, suppose Tim’s lawyer signed off on the plea agreement without explaining the charges or what a guilty plea means. In that case, the judge may find the plea was entered into involuntarily in violation of Tim’s constitutional rights. If the facts also show that the prosecution threatened Tim, 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 he would be acquitted? If he was handed down a harsh punishment from the court, 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, 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.

What is a “Fair and Just Reason?”

Courts require a defendant to demonstrate a fair and just reason to withdraw a guilty plea. Such a showing is necessary but not alone sufficient to withdraw a plea. Even though it is a required factor, courts have failed to discuss what a fair and just reason really is.

What is a Declaration of Innocence?

A declaration of innocence is critical to withdraw a guilty plea under federal law. Failing to assert the defendant’s innocence will automatically deny the motion to withdraw a guilty plea. A defendant cannot merely claim innocence. The defendant must assert some factual or legal basis for the assertion of innocence. Factual innocence means that based on all facts available to the court, the defendant is not guilty of the crime that has been charged.

For example, the defendant may have an alibi, or the acts performed by the defendant may not amount to a crime. Legal innocence asks the court to disregard incriminating evidence to establish the defendant’s innocence. For example, the only evidence linking a defendant to a crime may have been illegally obtained. Without that evidence, the prosecution cannot go forward, and the defendant will be found not guilty.

What Happens When a Motion to Withdraw is Delayed?

Courts demand that defendants promptly assert their innocence. The longer the wait to bring a motion to withdraw a guilty plea, the less likely the court will be to grant the motion. If a defendant has been truly mistaken in entering the guilty plea, they should quickly withdraw it. The longer the defendant waits to withdraw the plea, the less likely the court will view the decision as an error.

The longer the defendant waits, the more likely the court sees the defendant’s motion as based on strategic reasons unrelated to whether the defendant mistakenly entered into the plea agreement.

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 court approves the plea, there are very limited circumstances in which your plea can be reversed.