ico gavel 200

As our Network President Marty Hayes indicated in his September column, we often turn to our Affiliated Attorneys for a broader understanding of how various principles of law are applied across the nation. Looking more deeply into one of the issues the Washington Office of Insurance Commissioner originally raised but later dropped, we asked our affiliated attorneys to share their knowledge and experience with innocent clients who plead guilty when given an attractive plea offer. We asked--

Why might an innocent person choose to plead guilty to a crime they did not commit? Have you seen this occur first-hand?

So many attorneys wrote in to share their thoughts that this discussion has run in the September and October journals and is completed here. If you missed the previous commentaries, please return to https://armedcitizensnetwork.org/september-2021-attorney-question and https://armedcitizensnetwork.org/october-2021-attorney-question to get caught up.


Jeffrey F. Voelkl, Esq., LL.M.
Voelkl Law PC
19 South Long Street, Williamsville, NY 14221

No person should ever plea guilty, and no court should ever accept a plea of guilty if a person is truly not guilty of the crime. A plea is a sworn statement in court. Making a false statement can subject a person to additional criminal charges including perjury and contempt.

During a plea colloquy the accused will be asked if they are making their plea knowingly, voluntarily and be required to articulate each element of the crime, and their conduct which makes them guilty of said crime. If the accused cannot make truthful statements about their guilt associated with a crime, then they are making a false statement which could subject them to additional charges.

So why do so many people enter into pleas? Many persons have a justification or technical defense which may result in an acquittal. Despite knowing they have a meritorious defense, an accused person may choose to plead guilty for fear that their defense, while meritorious, may not carry the day at trial, and result in disastrous consequences if convicted. Under those circumstances an accused person can truthfully plead guilty to a crime, disregarding their defense.

If an accused is in a circumstance where they truly cannot admit their guilt to the elements of a crime, but nonetheless want to enter into a plea, they may be permitted to enter a nolo contendere (no contest) plea. This type of plea allows the accused to enter the plea, but avoid having to formally admit their guilt. Such a plea can only be entered if agreed to by the court and prosecutor.


Alex M. Ooley and E. Michael Ooley
Ooley Law
P.O. Box 70, Borden, IN 47106

Why might an innocent person choose to plead guilty to a crime they did not commit? Have you seen this occur first-hand?

One of the most persistent myths about the criminal “justice” system is that only guilty people plead guilty. In fact, given the coercive tools available to prosecutors, a rational choice for an innocent person might be to plead guilty to a lesser charge to avoid the risk of going to trial. But, if defendants have a right to trial by jury, why would they plead guilty? There are several factors.

First, prosecutors can stack charges with impunity. It is rare for us to handle a criminal matter where our client is not overcharged. So, even if our client is guilty of something, he or she is almost certainly not guilty of everything they have been charged with. This overcharging or stacking of charges is a bargaining technique that creates risk for a defendant at trial.

Second, defendants are often concerned with something commonly referred to as the “trial penalty.” The trial penalty is a term that refers to the differential between what a prosecutor will offer you if you take a plea bargain and what your punishment will be if you exercise your right to a trial and you lose. Often, the sentence if you are found guilty at trial would be worse than if you plead guilty. The possibility of suffering a trial penalty is often enough to convince someone to plead guilty, especially when coupled with the fact that many defendants are represented by public defense counsel who are often overworked and underpaid. The trial penalty is one of a whole suite of tools available to prosecutors to induce people to waive their right to a trial and plead guilty.

We should also mention that many states allow Alford pleas, which is a guilty plea where a defendant in a criminal case does not admit to the criminal act and asserts innocence. A defendant may use an Alford plea because the evidence is too strong to take a chance at trial, where taking the chance of a trial could end with tougher penalties than when pleading guilty, i.e. the trial penalty discussed previously. My understanding is that courts will treat this type of plea differently than the standard guilty plea because of the specific way the defending party will make the plea. We practice in Indiana, which is one of the few states that does not allow an Alford plea.

Third, lots of people end up in jail, awaiting trial. Sometimes they do not even have bail available to them. Even if they do have bail, it is often set at an amount that they just can not realistically afford, so they are going to be stuck in jail waiting for their trial. It is a very difficult and unpleasant place to be, so many people will plead guilty just to get out of jail rather than waiting weeks or months for trial. This has been especially problematic during the pandemic, when many court systems delayed trials for many months.

Fourth, and we mentioned this earlier, most people who go through our system are represented by government-funded lawyers, and the government persistently under-funds those lawyers. Essentially, they carry more cases than they should. They do not have the time to give a fully zealous representation in each of their cases. Sometimes you do not even meet your lawyer until the day of your trial and that is not how a zealous defense is put together.

Fifth, there is the problem of over-criminalization. There are so many crimes that it is hard to keep track of all of them. In fact, it is impossible to know everything that is a crime. This is especially concerning because many things that are against the law are not obviously wrong. There is a distinction in the law between actions that are malum in se (inherently wrong) like murder and actions that are malum prohibitum (wrong because they are prohibited), like carrying a firearm without a license. This over-criminalization, coupled with the vast resources of prosecutors to bring to bear on individuals, creates a situation that is antithetical to a free society.

Finally, prosecutors often threaten family members, especially in the federal system. So, if they want you to take a plea, and you are not interested, the prosecutor says something like, “Well, you know what? This is a white-collar business case, and your son participated in this business for a while, didn’t he? Maybe we should take a close look at him. Let’s look at his income taxes, look if he ever hired an undocumented worker, we’ll just look at every single facet of his life. How do you think your son would do in prison?” As shocking as it may seem, that happens all the time. It is routine for prosecutors to threaten family members in the way that I just described, especially in the federal system.

As you can see, there are several tools that prosecutors can wield to get someone to plead guilty, even if the person is innocent. I have not addressed every tool, like mandatory minimums, but taken together, you can see that these tools add up to a very coercive dynamic. The plea bargain, as it is practiced by prosecutors, has become a tool that helps pervert justice by penalizing people who seek a jury trial.

A few years ago, Lucian Dervan and others conducted a deception study, where they accused students of engaging in academic misconduct. The accused students were offered two alternatives. If they were willing to plead guilty, they would lose their compensation for participating in the study, which was akin to a plea in return for probation in the criminal justice system. If they did not plead guilty, they would proceed to a trial before an administrative review board, which was meant to represent a criminal trial. In that context, if the student lost, a differential was created by saying that they would lose their compensation, their advisor would be informed, and they would have to attend an ethics course.

The study showed that approximately 89% of the participants who were guilty of the misconduct accepted the plea deal and pleaded guilty. The study also showed that 56% of the innocent individuals also accepted the plea deal and pleaded guilty. 56% of the innocent individuals felt like the rational decision for them was to falsely plead guilty to something they had not done in the context of academic misconduct. That is very concerning, and it casts a lot of doubt on the accuracy of the plea-bargaining system, especially with the coercive tools available to prosecutors.


Timothy A. Forshey
1650 North First Avenue, Phoenix, AZ 85003

The answer is, unequivocally, and tragically, yes. I have seen it hundreds of times as both a judge and an attorney. It is, like a lot of things in life, simply a matter of choosing the lesser of two evils.

In Arizona, a defendant must show a “factual basis” for any plea, by testimony while under oath. So technically, falsely stating the facts that give legal cause for a guilty plea is in and of itself a crime—perjury. That said, we can often massage the way facts are truthfully presented to fit the statutory confines of a lesser crime to allow such a plea.

It often boils down to this: Do I plead to something (that I really feel I should not be punished for) that results in a little jail time, but no prison, which is retroactively reduced back to a misdemeanor 12 months from now and for which I’ve already paid my attorney, OR do I come up with another $100,000 (at least) and proceed to trial knowing that in even the strongest case for me there is a 20% chance of 15 years in prison? Remember always, to paraphrase Sir Winston, “we have the worst criminal justice system in the world...except for all the others.”

Best advice—in our world of sheepdogs, continually train and practice to lower the chance that you’ll ever have to face such a horrible choice.


Allan S. Diamond, Esq.
Funk, Szachacz & Diamond LLC
3962 West Eau Gallie Blvd Ste B, Melbourne, FL 32934

Many factors go into a person’s decision to enter a plea to a charged offense. Often the government will reduce the severity of the charge or agree to other concessions, i.e., length of sentence, fines, probation, or as in Florida – even if the person is to be considered a “convicted” felon, all of these factors affect a person’s decision to accept a plea deal. In Florida, the accused has the opportunity to enter a plea of “nolo contendere” – which is a plea without an admission of guilt. The court and the law recognize that occasionally entering into a plea is in a person’s best interest even if they do not feel they are guilty of the crime.

Sometimes the risk of a trial, especially in serious firearm/homicide cases, is too onerous. The very real chance that the jury will find a person guilty and be sentenced to life in prison without parole post-trial is often outweighed by the certainty of a plea deal with a definite term of years.

I had a personal experience where an accused took a plea to a crime when I truly believed she was innocent. No attorney can guarantee an outcome. If the jury found her guilty, it was a mandatory adjudication on a felony and prison. The guaranteed plea to a crime she didn’t commit allowed her to remain at home to raise her children (she was a single mother) and not be a convicted felon.

The decision to enter a plea is a very personal choice and is unique to each case and each defendant – however, many people plea to avoid the unknown of trial – even if they are not guilty.


We extend a hearty “Thank you!” to our affiliated attorneys who contributed comments about this topic. We have a new question for discussion amongst our affiliated attorneys next month and hope you will return for their commentaries.

To read more of this month's journal, please click here.