One frequently asked question I receive is: “Will my criminal case actually go to trial?” There are several aspects to criminal cases which need to be addressed in order to answer this question.

Whether you're charged with a misdemeanor or a felony, it is your constitutional right to have your case brought before a jury of your peers and for the state to prove your guilt beyond a reasonable doubt. The most important thing for you to know is: Whether your case settles or goes to trial is a decision that is 100% in your hands. Only you can make the decision whether to accept an offer of settlement from the government (plea agreement), plead guilty “straight up” without the benefit of a written plea agreement, or take the case to trial and make the government prove each and every element of its case beyond a reasonable doubt. Of course, the attorney you hire should be willing to give informed advice to help you answer the “settle-or-go-to-trial” question.

Regardless Whether Your Case Ever Gets To Trial, Your Attorney Should Be Fully Prepared To Take It There.

No matter whether your case settles through a negotiated settlement with the government (a plea agreement) or not, it is critical for your attorney to be ready, willing, and able to take the matter to trial and hold the government to its extremely high burden of proof beyond a reasonable doubt. If your attorney isn't taken seriously by the government's attorney, the offer he or she receives to settle your matter may not be as favorable as when your attorney is taken seriously. In other words, your attorney needs to do all the preparation up front in order to position your case for winning at trial. Only if he or she does this will the government take the “threat” to go to trial seriously and come to the bargaining table willing to make a reasonable plea offer.

Nationally, Most Cases Settle By Plea Agreement In Both Federal And State Court.

Some statistics put the percentage of federal criminal cases which resolve through plea bargain and guilty pleas at 90%. According to a 2016 article in the New York Times by Benjamin Weiser, entitled “Trial by Jury, a Hallowed American Right, is Vanishing,” federal judges bemoan this trend and believe the quality of justice in federal courthouses suffers as a result of guilty pleas based on negotiated settlements between criminal defendants and the government.

According to the United States Department of Justice's “Bureau of Justice Statistics,” page in 2006, nearly 95% of all criminal convictions resulted from guilty pleas.

In my experience, with the vanishing jury trial in mind, many prosecutors simply presume a plea agreement will be reached and the case will not go to trial. This is a dangerous mindset and is certainly not what the Founding Fathers had in mind when they drafted the Constitution. It also makes for some interesting conversations when, for example, the prosecutor is either: (1) not aware of all of the facts of the case prior to making an offer; or (2) is unprepared when the offer is rejected and the matter is calendared for trial.

Will My Sentence Be Worse If I Make The Government Prove Its Case At Trial?

The National Association of Criminal Defense Lawyers (NACDL), believes there is, indeed, a “trial penalty.” I have seen this in my practice, most often in my federal cases. In fact, the “trial penalty” is built into the United States Sentencing Guidelines! If you are a defendant in a federal criminal case and you decide to plead guilty, the “Offense Level” for your crime will be reduced between 2 and 3 levels for “acceptance of responsibility.” These levels correspond to years in prison. So, if you plead guilty in federal court, your sentence will typically be years less (absent the application of federal mandatory minimums…which is a whole other topic) than if you had exercised your right to a jury trial.

In state court in Idaho, there are no sentencing guidelines. That does not mean, however, there is not a “trial penalty.” It is simply more difficult to measure.

How Do I Make Sure The Attorney I Hire Will Go To Trial If I Want?

During your first contact with any criminal defense attorney, you should ask that very question. Ask them also how many cases they have taken to trial over the last 5 years. You may want to ask about the trial results, which is natural. If your potential attorney hasn't had any jury trials in the past 5 years, that should be a red flag for you. If your potential attorney is known to government attorneys as someone who does not take cases to trial, there is a possibility the government won't make the most favorable offer. If, on the other hand, the government attorneys know your attorney isn't “full of hot air” when they point out weaknesses the criminal case and the evidence the government has (or doesn't have), a more favorable plea offer may be in the making.

Regardless, you should have an attorney who is ready, willing, and able to take your case to trial!