THE PROS AND CONS OF GOING TO TRIAL

When someone is accused of a crime, the decision of whether to go to trial or resolve their case with a plea bargain may be one of the most difficult decisions that person has ever faced. Compounding matters, it is a decision that is often made with limited information. In California, depositions are not available in criminal matters, most probable cause hearings are conducted without live witnesses, and prosecution witnesses are free to decline to speak with defense investigators, so one is often limited to the statements made to police months or years earlier in trying to determine what the evidence will be against them at trial. It is rare that you know in advance what judge will preside over your trial, which can have a huge impact on both evidentiary and sentencing issues, and you never know who will sit on your jury. Not only is there often a limitation on the evidence available to the defendant, there is almost always a dearth of experience, as most defendants will be facing this choice for the first (and hopefully) only time in their lives.

So I’ve decided to share here some of the general advice I give to clients when face with this potentially life altering decision (and note: the decision to go to trial is one of the few that is at the client’s sole discretion; I can advise, but the decision must always be the client’s).

As you can see from what I have written above, trials are risky. Outcomes cannot be guaranteed. Clients are, understandably, very fond of asking “what do you think my chances are?” Unfortunately, the honest answer is usually, there are too many variables to answer that. So a big part of advising a client is explaining how I expect the evidence to come out at trial and the different ways a jury might view such evidence. Next is to talk about potential consequences if a client is convicted on some or all of the counts. Once I’ve provided this information, the question really boils down to what the client’s risk tolerance is.

During a negotiation class in law school, I learned about a concept I still employ to this day. BATNA stands for “best alternative to negotiated agreement.” It has many applications outside of the law, but is directly applicable to the decision of whether or not to go to trial. A plea bargain provides certainty, the absence of risk. A client knows what charges they will be convicted of by pleading guilty and what sentence they will receive. In the BATNA, this is the potential negotiated agreement. When evaluating an offer to plea, the only sensible thing to compare it to is the range of potential outcomes at trial, the “best alternative.” Once one has an idea of what each of these are, the individual client must determine what their level of risk tolerance is.

But here is a big caveat. Prosecutors do not really want to go to trial on most cases, nor do they have the resources to do so. They really don’t want to go to trial if they think they might lose. This where a criminal defendant gains leverage in a negotiation. And prosecutors know the defense bar. They know who is willing to actually put the government to their burden of proof and who is just bluffing and if your lawyer falls into the former category, someone who prosecutors know is willing to go to trial and is worthy adversary in the courtroom, they are much more likely to make a better offer to avoid that possibility. This is why it is critical that when hiring an attorney, you make sure you are hiring someone who is a fighter because even if your case never goes to trial, and most do not, the credible threat of a trial is sometimes the difference between resolving your case for something you are happy with or having to take whatever the prosecutor gives you.