Criminal Defense FAQs

A: Ultimately the time limit is trial. If you go to trial, the jury will do what they do and it’s too late. But pleas happen any time before the start of trial, and occasionally even in the middle of trial.

A: Sentences are usually reduced when taking a plea because you’d have to be crazy to take it otherwise. If the consequence of losing at trial is exactly the same as the consequence of a plea, why not roll the dice? Better a 1% chance of winning than a 0% chance. Some kind of plea bargain is available in almost all cases; the real question is whether it is a bargain you want to take.

A: Sometimes because there are benefits to plea bargaining; sometimes because lawyers are lazy. I get a lot of business from immigrants who were screwed over by their previous criminal attorney because the attorney did not analyze how someone’s situation is different if they are not a US citizen, and therefore did not advise them correctly. Common benefits of plea bargains can include getting a disposition that won’t show up when prospective employers do a criminal records check, getting a reduction of the charges (especially when one or more charge carries a mandatory minimum sentence and the government agrees to dismiss those charges in exchange for pleading to the rest), or negotiating a disposition with no or reduced risk of immigration consequences. But immigration law is weird and some things that can be helpful for other purposes can be useless or even harmful in an immigration context.

A: A plea bargain is a change of plea in exchange for some kind of benefit—dismissal or reduction of some charges, a reduction of the sentence the government is asking for, etc.

A: The not guilty plea comes at the beginning of the case. Your lawyer should absolutely see the evidence and discuss is with you before advising you about potential changes of plea. The government is required to share all evidence that they plan to use against you. In Massachusetts state courts, you are not even allowed to plead guilty before your lawyer has seen the evidence.

A: You will enter a plea of not guilty at the beginning of the case. In Massachusetts state courts, the court will do this on your behalf automatically. After that, you will only enter another plea if you decide to plead guilty or accept some other disposition that requires a change of plea. If you go to trial, you never change your plea.

A: The most common are not guilty, guilty, and a continuance without (“CWOF”), which is about the same thing in Massachusetts state court as a nolo contendere plea in federal court or many other states’ courts. Not guilty and guilty are pretty much what they sound like. The one thing I do want to point out is that these are legal terms, so pleading not guilty is not dishonest even if you did what you are charged with. You are legally not guilty until you are proven guilty, or enter a guilty plea, and should not plead guilty unless you have decided it is the best option after full discussion with an attorney about your options. A CWOF, or a nolo contendere plea depending on where you are, is an admission that the prosecution could prove sufficient facts to find you guilty, but not quite an admission of guilt. The advantage of these pleas is that in some situations it will not hurt you like a guilty plea would later in life. For example, for most employment purposes, employers can only see a version of your criminal record that includes convictions or open cases, but not CWOFs where you have completed the sentence. So it can be better to take a CWOF than to go to trial and risk being found guilty. But make sure you get the benefit you think you are getting. For law enforcement, military, or any other employment that requires a security clearance, CWOFs will probably show up. For immigration, they will show up and will count exactly the same as a conviction.

Other pleas exist but are less frequently used. A guilty file is sometimes an option when a conviction would carry immigration consequences, because it IS a conviction under state law, but IS NOT a conviction under federal law, provided certain conditions are met.

A: There are a few possibilities. If you were arrested but then released immediately and not booked into jail, the police most likely decided to issue a summons. This is common for misdemeanor crimes, especially if the police did not actually see you commit the crime. You will receive paperwork from the court instructing you what the charges are and when to appear. This will not happen instantaneously, because the police first have to apply for a complaint with the clerk magistrate, and you may have the opportunity to be heard in front of the clerk magistrate and ask for a dismissal or reduction of the charges before you are actually charged. If it has been several weeks, you may want to check with the clerk’s office to make sure they did not mail paperwork to the wrong address. If they did, and you didn’t show up to court when you were supposed to, they will issue a default warrant and you could get a nasty surprise later—being arrested and hauled into court to deal with it. Better to find out right away and deal with it on your own terms. That will most likely be whichever district court or branch of Boston Municipal Court has jurisdiction for the location where you were arrested. It is also possible the police have chosen not to bring charges, although that would be unlikely if they arrested you.