Plea Agreements and Trial Procedures

In the federal criminal system, most cases never reach a jury. A defendant who is charged with a federal crime has two basic ways the case can end. He can plead guilty, often under a written agreement with the prosecutor, or he can take the case to trial. A plea agreement is a deal. The defendant gives up his right to a trial and admits guilt. In return the government gives up something, such as dropping other counts or recommending a lower sentence. The rules for how a judge accepts a guilty plea, and what the judge has to tell the defendant first, are set out in Federal Rule of Criminal Procedure 11.

Guilty pleas account for the large majority of federal cases. In fiscal year 2022, about 89.5 percent of all defendants in federal criminal cases pleaded guilty. Roughly 2.3 percent went to trial. The rest had their cases dismissed. Of the defendants who were actually convicted, more than 97 percent were convicted by guilty plea rather than by a trial verdict. The trial, which is the part of the system people picture from television, is the rare outcome.

This page explains how federal plea agreements work, the three kinds Rule 11 allows, what a judge says to a defendant during the plea hearing, and what happens in the small share of cases that go all the way to a jury.

Overview

A plea agreement is a contract between the defendant and the United States. The two sides negotiate it. Defense counsel and the prosecutor work out terms, put them in writing, and present the result to the judge. The judge is not a party to the negotiation. The judge decides whether to accept the deal.

The reason most defendants plead guilty comes down to math and risk. Federal sentencing is driven by the United States Sentencing Guidelines, which assign an offense level and a criminal history category that together produce a recommended sentencing range. A defendant who pleads guilty and accepts responsibility for the offense usually qualifies for a reduction in his offense level under the Guidelines, which lowers the range. A defendant who goes to trial and loses generally does not get that reduction. He also faces the full weight of whatever the jury convicts him on. The gap between the plea sentence and the post-trial sentence is large in many cases, and that gap shapes the decision.

A guilty plea also closes doors. By pleading guilty the defendant gives up the right to a trial and most challenges he could have raised in one. Many federal plea agreements include an appeal waiver, in which the defendant agrees not to appeal his conviction or sentence except in narrow circumstances. Going to trial keeps those rights open but carries the risk of a worse result.

Types of Plea Agreements (Rule 11)

Rule 11(c)(1) describes three forms a plea agreement can take. They differ in what the prosecutor promises and in how much power the judge keeps over the sentence.

Rule 11(c)(1)(A): Charge bargain

In an (A) agreement the government agrees not to bring certain charges, or to move to dismiss charges that have already been filed. The defendant pleads guilty to fewer counts, or to a lesser count, and the rest go away. This is a charge bargain. It matters because the charges a defendant is convicted of set the ceiling on his possible sentence and feed directly into the Guidelines calculation. Dropping a count with a mandatory minimum, for example, can change the outcome more than any sentencing argument later.

Rule 11(c)(1)(B): Non-binding recommendation

In a (B) agreement the government agrees to recommend a particular sentence, or to not oppose the defendant's request for one. The key word is recommend. The recommendation does not bind the judge. The judge can listen to it and then impose a different sentence, higher or lower. A defendant who pleads under a (B) agreement is not allowed to withdraw his plea just because the judge rejects the recommendation and gives him more time. This is the most common structure, and it leaves the real sentencing decision with the court.

Rule 11(c)(1)(C): Binding sentence

In a (C) agreement the two sides agree that a specific sentence, or a specific sentencing range, is the right disposition. This kind of agreement binds the judge, but only once the judge accepts it. The judge has a choice. He can accept the agreement, in which case he must impose the agreed sentence. He can reject it, in which case the defendant is allowed to withdraw his guilty plea and the case can go forward as if no deal had been made. Lawyers often call these "C pleas." They give the defendant the most certainty about his sentence, which is why they are common in cases where the exact number matters most to the parties.

The Plea Colloquy

Before a judge can accept a guilty plea, the judge has to talk to the defendant directly, on the record, in open court. This conversation is called the plea colloquy. Its purpose is to confirm that the plea is knowing and voluntary and that there is a real factual basis for it. Rule 11(b) lays out what the judge must cover.

The judge places the defendant under oath and addresses him personally. The judge then makes sure the defendant understands several things. He must understand the nature of each charge he is pleading to. He must understand the maximum possible penalty, including any mandatory minimum sentence, any term of supervised release, and any fine or restitution. The judge confirms the defendant understands he is doing this voluntarily and that no one has threatened him or made promises outside the written agreement to get him to plead.

The heart of the colloquy is the list of rights the defendant gives up. Under Rule 11(b)(1) the judge tells the defendant that by pleading guilty he is waiving:

• the right to plead not guilty, or to keep a not-guilty plea already entered;
• the right to a jury trial;
• the right to be represented by counsel at that trial;
• the right to confront and cross-examine the witnesses against him;
• the right against self-incrimination, meaning he cannot be forced to testify against himself; and
• the right to testify, to present evidence, and to compel witnesses to appear in his defense.

The judge also establishes a factual basis for the plea, usually by having the prosecutor state what the government would prove or by asking the defendant to describe what he did. A guilty plea is not accepted on the admission alone. There has to be a factual basis on the record showing the conduct actually amounts to the crime.

If the defendant answers the questions, says he understands the rights he is giving up, and admits the conduct, the judge can accept the plea. In some cases the judge defers the decision until after reviewing the presentence report, which is prepared by the probation office and calculates the Guidelines range.

Trial Procedures

When a defendant pleads not guilty, the case is set for trial. A federal criminal trial follows a defined sequence, and the burden stays on the government the entire time.

Most felony defendants are tried before a jury. A defendant can waive the jury and be tried by the judge alone, which is called a bench trial, but that requires the government's consent and the court's approval. Trial begins with jury selection. A pool of prospective jurors is summoned, and the lawyers and judge question them in a process called voir dire. Each side can remove a limited number of jurors without giving a reason, using what are called peremptory challenges, and an unlimited number for cause when a juror cannot be fair.

After the jury is seated, the lawyers give opening statements. The prosecution goes first. Then the government puts on its case. It calls witnesses and introduces evidence, and the defense gets to cross-examine each witness. The government carries the burden of proof, and the standard is proof beyond a reasonable doubt. The defendant is presumed innocent and does not have to prove anything.

When the government rests, the defense may present its own witnesses and evidence, or it may rest without putting on anything at all. The defendant has a right not to testify, and the jury is told it cannot hold his silence against him. After the evidence is in, both sides give closing arguments. The prosecution argues first and, because it carries the burden, usually gets a final rebuttal after the defense closes.

The judge then instructs the jury on the law that applies, explaining the elements of each charge and the reasonable-doubt standard. The jury goes out to deliberate in private. In federal criminal cases the verdict must be unanimous. All twelve jurors have to agree to convict or to acquit. If the jury cannot reach agreement, the result is a hung jury and a mistrial, and the government can choose to try the case again. A defendant who is acquitted goes free and cannot be tried again for the same offense. A defendant who is convicted moves on to sentencing, which the judge sets for a later date.

Frequently Asked Questions

What is a federal plea agreement?

It is a written contract between a defendant and the government. The defendant agrees to plead guilty to one or more charges, and in exchange the prosecutor agrees to something, such as dismissing other counts or recommending a particular sentence. A judge has to accept the agreement and the guilty plea before it takes effect.

What is the difference between a (B) plea and a (C) plea?

In a Rule 11(c)(1)(B) agreement, the prosecutor recommends a sentence but the judge does not have to follow it, and the defendant cannot take back his plea if the judge gives him more time. In a Rule 11(c)(1)(C) agreement, the parties agree on a specific sentence that binds the judge once the judge accepts the deal. If the judge rejects a (C) agreement, the defendant can withdraw his plea.

What rights do you give up by pleading guilty?

A guilty plea waives the right to a jury trial, the right to make the government prove its case, the right to confront and cross-examine witnesses, the right against self-incrimination, and the right to present a defense. The judge reviews each of these with the defendant during the plea colloquy.

What is a plea colloquy?

It is the in-court conversation between the judge and the defendant before a guilty plea is accepted. The judge confirms the defendant understands the charges, the maximum penalties, and the rights he is waiving, and that the plea is voluntary. The judge also confirms there is a factual basis for the plea.

Do most federal cases go to trial?

No. The large majority of federal cases end in guilty pleas. In fiscal year 2022, about 89.5 percent of all federal defendants pleaded guilty and only about 2.3 percent went to trial. Among defendants who were convicted, more than 97 percent were convicted by plea.

What does the government have to prove at trial?

The government must prove every element of the charged offense beyond a reasonable doubt. The defendant is presumed innocent and is not required to prove anything or to testify.

Does a federal jury have to be unanimous?

Yes. A guilty or not-guilty verdict in a federal criminal case must be unanimous. If the jurors cannot all agree, the result is a hung jury and a mistrial, and the government may decide whether to retry the case.