In legal terms, a plea is simply an answer to a claim made by someone in a criminal case under common law using the adversarial system. Colloquially, a plea has come to mean the assertion by a defendant at arraignment, or otherwise in response to a criminal charge, whether that person pleaded guilty, not guilty, no contest, (in the United States) Alford plea or (in the United Kingdom) no case to answer.

The concept of the plea is one of the major differences between criminal procedure under common law and procedure under the civil law system. Under common law, a defendant who pleads guilty is automatically convicted and the remainder of the trial is used to determine the sentence. This produces a system known as plea bargaining, in which defendants may plead guilty in exchange for a more lenient punishment. In civil law jurisdictions, a confession by the defendant is treated like any other piece of evidence, and a full confession does not prevent a full trial from occurring or relieve the prosecutor from having to present a case to the court.

Types of plea

The most common types of plea are "guilty" and "not guilty".

Pleading guilty typically results in a more lenient punishment for the defendant; it is thus a type of mitigating factor in sentencing.[1] In a plea bargain a defendant makes a deal with the prosecution or court to plead guilty in exchange for a more lenient punishment, or for related charges against them to be dropped. A "blind plea" is a guilty plea entered with no plea agreement in place.[2] Plea bargains are particularly common in the United States.[3] Other countries use a more limited form of plea bargaining. In the United Kingdom and Germany, guidelines state that only the timing of the guilty plea can affect the reduction in the punishment, with an earlier plea resulting in a greater reduction.

In the United States, a Nolo contendere (no contest) plea is when the defendant submits a plea that neither admits nor denies the offense. It has the same immediate effect of a guilty plea, in that the trial avoids determining the defendant's guilt.

Peremptory pleas

These are pleas which claim that a case cannot proceed for some reason. They are so called because, rather than being an answer to the question of guilt or innocence, they are a claim that the matter of guilt or innocence should not be considered.

They are:

  • autrefois convict (or acquit) - where under the doctrine of double jeopardy, he has previously convicted or acquitted of the same charge and hence cannot be tried again.
  • plea of pardon - where he has been pardoned for the offense.

No plea entered

A defendant who refuses to enter a plea is usually interpreted as giving a plea of not guilty; the Federal Rules of Criminal Procedure, for instance, state, "If a defendant refuses to enter a plea or if a defendant organization fails to appear, the court must enter a plea of not guilty."[4] Similarly, if a defendant attempts to enter an unorthodox plea (a "creative plea"), this will usually be interpreted as a plea of not guilty.[5] One example of this is a defendant accused of a crime committed while protesting nuclear power, who gave his plea as "I plead for the beauty that surrounds us".[6]

Until 1772, English law stated that if a defendant refused to plead guilty or not guilty, the trial was delayed from taking place. Some of these defendants were subjected to peine forte et dure (torture by pressing) until he or she entered a plea, although some died. The last recorded instance of this was in 1741.

United States

"Voluntary and intelligent"

A defendant who enters a plea of guilty must do so, in the phraseology of a 1938 Supreme Court case, Johnson v. Zerbst, "knowingly, voluntarily and intelligently". The burden is on the prosecution to prove that all waivers of the defendant's rights complied with due process standards. Accordingly, in cases of all but the most minor offences, the court or the prosecution (depending upon local custom and the presiding judge's preference) will engage in a plea colloquy wherein they ask the defendant a series of rote questions about the defendant's knowledge of his rights and the voluntariness of the plea. Typically the hearing on the guilty plea is transcribed by a court reporter and the transcript is made a part of the permanent record of the case in order to preserve the conviction's validity from being challenged at some future time. "Voluntary" has been described as "an elusive term which has come to mean not induced by 'improper' inducements, such as bribing or physical violence, but not including the inducements normally associated with charge and sentence bargaining (except for inducements involving 'overcharging' by prosecutors)." "Intelligent" has been described as "also an elusive term, meaning that the defendant knows his rights, the nature of the charge to which he is pleading, and the consequences of his plea."[7]

Virtually all jurisdictions hold that defense counsel need not discuss with defendants the collateral consequences of pleading guilty, such as consecutive sentencing or even treatment as an aggravating circumstance in an ongoing capital prosecution.[8] However, the Supreme Court recognized an important exception in Padilla v. Kentucky (2010), in which the Court held that defense counsel is obligated to inform defendants of the potential immigration consequences of a guilty plea. Thus a defendant who is not advised of immigration consequences may have an ineffective assistance of counsel argument.

In the U.S. federal system, the court must also satisfy itself that there is a factual basis for the guilty plea.[9] However, this safeguard may not be very effective, because the parties, having reached a plea agreement, may be reluctant to reveal any information that could disturb the agreement. When a plea agreement has been made, the judge's factual basis inquiry is usually perfunctory, and the standard for finding that the plea is factually based is very low.[10]

Special pleas

Other special pleas used in criminal cases include the plea of mental incompetence, challenging the jurisdiction of the court over the defendant's person, the plea in bar, attacking the jurisdiction of the court over the crime charged, and the plea in abatement, which is used to address procedural errors in bringing the charges against the defendant, not apparent on the "face" of the indictment or other charging instrument. Special pleas in federal criminal cases have been abolished, and defenses formerly raised by special plea are now raised by motion to dismiss.

A conditional plea is one where the defendant pleads guilty to the offense, but specifically reserves the right to appeal certain aspects of the charges (for example, that the evidence was illegally obtained).

In United States v. Binion, malingering or feigning illness during a competency evaluation was held to be obstruction of justice and led to an enhanced sentence. Although the defendant had pleaded guilty, he was not awarded a reduction in sentence because the feigned illness was considered to mean that he was not accepting responsibility for his illegal behavior.[11]

Plea in mitigation

A plea in mitigation is a term used during criminal law proceedings in many Commonwealth countries. It typically involves a lawyer telling a judge of extenuating circumstances that could result in a lesser sentence for an offender.[12]

See also


  1. Sentencing Council
  2. Etienne, Margareth (Summer 2005). "The Ethics of Cause Lawyering: An Empirical Examination of Criminal Defense Lawyers as Cause Lawyers". The Journal of Criminal Law and Criminology. 95 (4): 1195–1260. JSTOR 3491403.
  3. Alschuler, Albert W. (1979). Plea Bargaining and Its History. Colum. L. Rev. 79. pp. 1–43. JSTOR 1122051.
  4. Rule 11, Federal Rules of Criminal Procedure
  5. National Lawyers Guild, LA Chapter, Questions and Answers about Civil Disobedience and the Legal Process (PDF), archived from the original (PDF) on 2011-07-27
  6. Hurst, John (August 10, 1978), A-plant protestors being freed, Los Angeles Times
  7. McDonald, William F. (1986–1987), Judicial Supervision of the Guilty Plea Process: A Study of Six Jurisdictions, 70, Judicature, p. 203
  8. Chin, Gabriel J.; Holmes, Richard W. Jr. (2001–2002), Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87, Cornell L. Rev., p. 697
  9. "Rule 11. Pleas". Cornell Law School.
  10. Turner, Jenia Iontcheva (Winter 2006), Judicial Participation in Plea Negotiations: A Comparative View, 54, The American Journal of Comparative Law, pp. 199–267
  11. "Behavior of the Defendant in a Competency-to-Stand-Trial Evaluation Becomes an Issue in Sentencing". Journal of the American Psychiatric Association. Retrieved 2007-10-10.
  12. "Sentencing - Overview". The Crown Prosecution Service. Government of the United Kingdom. Retrieved 23 March 2019.
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