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The Importance of Risk Allocation In Criminal Defense Matters

The Importance of Risk Allocation In Criminal Defense Matters

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Inherent in the practice of criminal defense is the responsibility of attorneys to present their clients with options and evaluate the consequences of a given course of action.

In crafting a cogent defense, the central question becomes whether the client should plead guilty or, alternatively, proceed to trial. The ensuing evaluation goes to the heart of risk allocation.

Often, both the attorney and the client are faced with extremes. In the state of Ohio, less than 1% of all criminal cases advance to trial. This astonishing statistic infers that law enforcement is accurate 99% of the time. Rational minds cannot possibly believe in the veracity of such an inference. Neither private industries nor government entities—not even law enforcement itself—can boast that kind of exactitude.  In truth, individuals are being squeezed into pleading guilty for offenses that they did not commit, and the criminal justice system is failing them.

At the other end of the spectrum are the trial enthusiasts—those practitioners who revel in the numerous trials on their resumes which, in their view, bolster their expertise and credibility. Query: how many of those trials resulted in success on the merits, reduction of charges, or dismissals? Still other attorneys avoid trial at all costs, due to the arduous work and long hours involved.

Trial is neither a chess game nor an albatross. At the core of every criminal defense matter lies the client’s best interests. An attorney’s objective must be to analyze the facts and issues at hand and the defenses available to the client, and obtain the best possible offer under the circumstances. While a practitioner cannot ethically direct a client to plead guilty, both the attorney and client must weigh the pros and cons of either taking a deal or opting for a jury trial.

In the final analysis, this binary choice lies in the hands of the client whose life it impacts. The client lives with the aftermath, not the attorney, and while mistakes are foreseeable—and sometimes inevitable—knowledge and deliberation yield empowerment. Attorneys can guide and assist in the formulation of strategies with a view to achieving favorable outcomes (ideally, either a dismissal or a reduction of charges), but clients are the ultimate architects of their defense.

In weighing the advantages and disadvantages of a guilty plea versus a jury trial, the following analysis takes place:

Pleading Guilty

A guilty plea is not tantamount to an admission of guilt. Rather, taking a deal often reduces or even averts lengthy prison sentences. There are mitigating circumstances which render a plea necessary. Thus, it is important to allocate the risks to determine where a sensible cutoff point lies for taking an offer.

  1. Advantages

(a) Effectiveness of the Deal

The client and counsel must determine the efficacy of the offer. If the guilty plea will result either in a significant reduction of charges, an expungement, or a dismissal, the client has nothing to lose. However, if there is an overwhelming likelihood of success on the merits, proceeding to trial may be more advantageous. The analysis is not always simple, however, and there are further advantages to pleading guilty, set forth below.

(b) Avoidance of the Risk of Arbitrariness and Juror Impartiality

If the client opts to take a deal and plead guilty, he or she basically knows the outcome and avoids the arbitrariness of a decision by a group of twelve individuals who entertain unique predispositions, biases, and ideological perspectives.

At trial, therefore, there is no guarantee of fairness and impartiality. Voir dire is not always foolproof, since jurors are often loath to admit to certain propensities or precepts that are entirely inappropriate in civilized societies (e.g., membership in fringe organizations or groups, tendencies towards racism, misogyny, xenophobia, or other types of discrimination). Similarly, when asked if they have ever been the victim of a sex crime (e.g., sexual assault or rape), few people will divulge such deeply personal information.

(C) Evidentiary Surprises

At trial, criminal defense attorneys do not decide the issues. They only present them in a manner most favorable to the client. However, a host of evidentiary issues can, potentially, arise throughout the trial that can skew and sway the kinds of information revealed to the jury and how the judge will rule. Myriad variables can change the course of a criminal trial, and a ‘safe bet’ is a pipedream. In the middle of the proceedings, the judge can request that the jury disregard the defense’s entire proffer of evidence, effectively precluding the presentation of exculpatory information on the client’s behalf.

Consequently, trial outcomes are as unpredictable as the judges who review the evidence and the jurors who render the verdict. Just when the attorney and client believe that they are facing a “slam dunk” in their favor, juror whims or arbitrary interpretation of the facts can result in a finding of guilt. Conversely, even in the presence of overwhelming evidence of the defendant’s culpability, the jury can return a verdict of “not guilty.”

  1. Disadvantages

(a) Forfeiture of Sixth Amendment Rights

By pleading guilty, clients voluntarily surrender their rights to Six Amendment protections: the right to a speedy and public trial, an impartial jury within the state or district where the crime was committed, the right to be informed of the nature of the charges, the right to be confronted with adverse witnesses, and to receive the assistance of counsel. 

(b) The Moral Dilemma

Although a guilty plea is not an admission of culpability, clients who opt to take an offer will admit to an offense which they did not commit. Such a decision may give rise to the moral dilemma of  ‘confessing’ to something they did not do. In that case, the client may choose to take an Alford plea, per North Carolina v. Alford (1970), which allows the defendant in a criminal case to assert innocence, while acknowledging that if the case proceeded to trial, the prosecution would, most likely, meet its burden of proof (This type of plea is distinguished from a nolo contendere (i.e., a “no contest” plea).  In the latter instance, the defendant neither confirms or denies the charges, but accepts the imposed sentence and sustains punishment for the offense.

(C) Mistrust of Legal Counsel 

When attorneys suggest a guilty plea, there is a chance that clients will feel that counsel is not on their side. Attorneys, however, must explain that, on the contrary, risk allocation is in the clients’ best interests, and that in many cases, the benefits of pleading guilty outweigh the unpredictability and gamble associated with going to trial.

Opting For a Jury Trial

Although there is considerable risk in proceeding to trial, given the biases of juries and the highly unpredictable nature of verdicts (even in the presence of overwhelming exculpatory evidence), there are some benefits to taking this option.

  1. Advantages

(a) Preservation of Sixth Amendment Rights

 If the client has an ‘open and shut case,’ and the attorney believes that the prosecution will not be able to meet its burden of proof, counsel may want to advise the client to go to trial. The defendant will understand the nature of the charges, be able to confront adverse witnesses, present applicable defenses/justifications, and by dint of fortune, succeed on the merits. For the innocent, prevailing before a jury of peers in the community solidifies and reaffirms that person’s and standing in the community, restores his or her reputation, good name, and ability to reintegrate successfully into society.

(b) The Permanent Elimination of Charges 

A “not guilty” verdict will restore the client to the status quo anti, entirely eliminating the charges. The individual can carry on as before, without the taint of marginalization or lifetime stigmas whatsoever.

  1. Disadvantages
  • Juror impartiality and personal predispositions that may preclude a defendant’s right to objectivity at trial render a client’s decision to proceed to trial highly unfavorable.
  • The unpredictability, lack of impartiality, and inconsistency of jury verdicts, even in the presence of exculpatory evidence pose enormous risks that should be explained and evaluated.

  Given the risks of a jury trial, the remedy should be used as a last resort— neither as a means of an attorney’s self-aggrandizement or an affirmation of expertise, nor should it be avoided like the plague if, under the circumstances of a given case, the client would ultimately benefit from a decision on the merits.

   First and foremost, an attorney’s advice and intervention on behalf of a client must consist of risk allocation—the presentation and evaluation of options— the pros and cons of pleading guilty or opting for a jury trial. Pleading guilty, without more, pigeonholes defendants, depriving them of exercising their Sixth Amendment rights and creating the presumption that law enforcement is accurate nearly all of the time. How can that be? Even the gods on Mount Olympus erred. On the other hand, going to trial without intricately analyzing the risks can be devastating to a client.

  For the foregoing reasons, risk allocation must be the first order of every defense, from which attorneys and clients will derive a mutual benefit in the pursuit of justice and the inalienable rights to life, liberty, and human dignity.

About The Author
Brian Joslyn
The Joslyn Law Firm is pleased to be accepted as one of Ohio's most qualified criminal defense and OVI attorneys. Our criminal defense lawyers in Columbus have handled over 15,000 criminal cases. Our firm's founding attorney, Brian Joslyn has been recognized by the National Academy of Criminal Defense Attorneys as one of the top ten best criminal attorneys in the state of Ohio. Columbus CEO Magazi ...read more


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