As a criminal defense lawyer I get asked questions from a lot of people about what they should do in various circumstances and hypothetical situations.  I am truly glad that they approach me and ask me as I like to be able to help people and I believe I have information that will assist. However, one of the questions that I get asked routinely is quite frustrating. Occasionally, someone will ask me how I represent someone that I know is guilty.  I find this question frustrating because often times it is laced with some type of judgment that I am helping people get off when I know that they’re guilty or assisting people that are bad and so therefore that makes me bad by association. However, it’s most frustrating because I’m surprised that the people who ask the question have such a limited understanding of our system of justice and jurisprudence and the notion that everybody is innocent until they’re proven guilty – even if they did commit the crime of which they have been accused.

In a criminal case, it is essential to make the correct decision about whether or not someone who is accused of a crime should take that case to trial.  Like the question that I get asked routinely about whether or not I have a problem representing someone who is guilty, the decision to go to trial is based more on what kind of an offer the state is making in order to get my client to plead guilty and less about whether or not they actually committed the offense.  The most important constitutional right that a defendant possesses is the right to a trial. This includes the right to a jury trial in some cases. This right also includes the right to have an attorney to represent you, to confront and cross-examine the states witnesses and evidence, the right to remain silent and not testify, the right to subpoena witnesses and force them to come to court and testify, the right to file motions with regard to the admissibility of evidence or testimony at trial, and many other rights that are associated with going to trial. In order for someone to plead guilty, they are required by law to give up the right to a trial and all the rights that are associated with it.  If you want to look at it like a cost and benefit type of situation, then the cost of accepting a plea agreement is the constitutional rights that you give up. The benefit is whatever promises are made in the plea agreement. The decision to go to trial, oftentimes, is made by analyzing whether or not the benefit of the plea agreement outweighs the cost of the constitutional rights that must be given up in order to receive those benefits.

Let’s look at a hypothetical DUI case as an example of this analysis.  A Defendant has been charged with DUI, his blood alcohol concentration is a .11. There was no accident in the case or any other type of behavior that would make the case anything more than a typical DUI. In practically any court in the state, the first offer for an individual like this on a first offense DUI  would be to plead guilty to DUI and receive the following punishment by way of stipulation: 10 days in jail with nine days suspended if the defendant agrees to complete an alcohol abuse screening and treatment program, there would be a fine by way of stipulation and there would also be consequences with regard to the individuals license such as a suspension and the requirement to equip his vehicle with an ignition airlock device. This is commonly known as a minimum DUI punishment meaning that the law in Arizona does not permit the individual to receive a lower punishment if he pleads guilty to or is found guilty of DUI.  As a result many people would think that this is a good offer because it is the minimum. However, if the same individual were to go to trial, and the state is able to prove beyond a reasonable doubt each and every element of the offense and he was found guilty, the likely punishment that he would receive would be exactly the same as the plea offer that he was given. Under our analysis, the offer is not a very good offer because it’s giving him exactly what he will get if he goes to trial and loses. Put another way, there is no benefit to him for giving up his constitutional rights.

Let me give another example using a case that shows the benefit of accepting a plea.  Under this hypothetical, the Defendant is charged with an Extreme DUI and his blood alcohol concentration is a .155. As a result of his blood alcohol concentration being above the extreme limit of .15, the minimum punishments for this type of an offense increases from the punishments that were described in the previous example. This individual, if he pleads guilty or is found guilty of extreme DUI, will be required to serve substantially more jail, pay a bigger fine and have other consequences that make the punishment, even if it’s a minimum punishment much more severe than a typical first offense minimum DUI. Now, let’s say that the plea offer in this case was to allow the individual to plead to a first offense, Non-extreme DUI with a stipulation that he will serve 5 days in jail.  Under the analysis that we have been discussing, that would be a very good plea offer assuming the DUI case was solid and capable being proved in a court of law. In this example, the prosecutor is offering a real benefit to the defendant in return for him giving up his constitutional rights to a trial.  If he goes to trial and is convicted of the extreme DUI, then the punishment would be, by law much, worse than what is being offered. The benefit to the plea agreement is tangible and real.

There have been many cases that I have taken to trial under this very analysis that has just been described. The state makes a plea offer to my client that does not give him any benefit for the loss of his constitutional right to a trial. If there is no risk to my client taking the case to trial, then under most circumstances we set the case for trial and make the state prove their case. If the State is not able to prove their case then mu client wins, the State loses and the gamble pays off because there was really no risk.  However, even if he is convicted, the risk is very very small that he that he will receive a punishment that is greater than the offered plea agreement. As a result, the Defendant still wins because he has exercised his rights without any risk and without any cost and has successfully gone through the justice system even if he does not win at trial.

I have many clients go to trial, even when they have committed the acts for which they have been accused, because the plea offer does not justify them giving up their constitutional right to a trial.  I’ve had clients win when we didn’t expect to win because the state inexplicably forgot to identify the defendant, or failed to prove that the case had the proper jurisdiction, or blood alcohol evidence had been destroyed or lost.  Going to trial can be a very risky prospect if the offer that is made prior to trial is better than what the defendant could have hoped to get if convicted at trial. However, the decision to go to trial is easy to make when the offer being extended by the state contemplates a punishment that is no worse than what the individual will likely receive if convicted. Making the state jump through the hoops in order to earn the conviction requires them to prove each and every element of the offense. If they make a mistake in anyway with regard to that burden of proof, then the defendant is found not guilty, regardless of whether not he committed the offense and our system of justice has worked exactly as it was designed. Going to trial, even when you committed the offense, isn’t always the wrong decision. A consultation with a skilled lawyer who knows how to evaluate the circumstances and give the right advice with regard to the decision to go to trial is essential.


In future blog entries, I will explore each of these forms of relief in detail. Until then, this blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Mesa Criminal Attorney, Garrett L. Smith at 480-540-6021 log on to, or contact an attorney in your area.