Plea vs. Trial in Michigan: How to Think About the Choice

An offer is on the table, or a trial date is set

At a pretrial conference the prosecutor may make an offer: plead to a lesser charge, or plead as charged with an agreed sentence or a sentence recommendation. Or there is no offer and the court sets a trial date. Either way, you will be asked to decide.

Michigan's rules of professional conduct make it your decision. Under MRPC 1.2(a), a lawyer in a criminal case must abide by the client's decision, after consultation, on the plea to be entered, whether to waive a jury trial and whether the client will testify. MRPC 1.4 requires the lawyer to tell you promptly about every proposed plea bargain and to explain enough for you to make an informed decision.

This page is general information about Michigan law. It lays out what each path keeps and gives up. It does not say which is right for you, because that depends on the evidence, the charge and your record, so talk to a lawyer about your own case. See also what happens at a pretrial and the site's plea deal page.

The pleas Michigan allows

MCR 6.301(A) lists the possible pleas: not guilty, guilty, nolo contendere (no contest), guilty but mentally ill, and not guilty by reason of insanity. If you refuse to plead or stand mute, the court enters a not guilty plea for you. A no contest plea needs the court's consent (MCR 6.301(B)), and the court may not accept a plea to an offense other than the one charged without the prosecutor's consent (MCR 6.301(D)).

A no contest plea is not a statement that you did it. The court may not question you about your part in the crime and must find support for guilt from other information (MCR 6.302(D)(2)). Once accepted, the case moves to sentencing as it would after a guilty plea. The article on guilty, not guilty or no contest explains where the difference matters.

Felony pleas in circuit court follow MCR 6.301 to 6.312 (MCR 6.001(A)). Misdemeanor pleas in district court follow MCR 6.610(F) (MCR 6.001(B)), which sets the same core test: the plea must be understanding, voluntary and accurate (MCR 6.610(F)(1)).

What a guilty or no contest plea gives up

Before accepting a felony plea, the judge must place you under oath and be convinced the plea is understanding, voluntary and accurate (MCR 6.302(A)). The judge must also ask whether anyone promised you anything beyond the agreement, whether anyone threatened you and whether pleading is your own choice (MCR 6.302(C)(5)). Under MCR 6.302(B), the judge tells you that if the plea is accepted there will be no trial of any kind, and that you give up the following:

• The right to be tried by a jury (MCR 6.302(B)(3)(a)).
• The right to be presumed innocent, and to have the prosecutor prove guilt beyond a reasonable doubt (MCR 6.302(B)(3)(b), (c)).
• The right to have the witnesses against you appear at trial and to question them, and to have the court order your own witnesses to appear (MCR 6.302(B)(3)(d)-(f)).
• The right to remain silent at trial without that silence being used against you, and the right to testify if you choose (MCR 6.302(B)(3)(g)-(i)).
• Issues you could otherwise raise on appeal; any appeal after a plea is by application for leave, not by right (MCR 6.302(B)(5); Const 1963, art 1, sec 20).

Plea agreements, sentence agreements and taking a plea back

A plea agreement must be stated on the record or put in writing and signed by the parties (MCR 6.302(C)(1)). It may include a sentence to a specific term or range, or a sentence recommendation by the prosecutor. Under MCR 6.302(C)(4), the judge may reject the agreement, accept it, or take it under advisement. If the judge then will not follow an agreed term or range, you must be allowed to withdraw the plea; if the judge only declines to follow the prosecutor's recommendation, you are not entitled to withdraw it (MCR 6.302(C)(4); MCR 6.310(B)(2)(a)).

Sometimes the judge, not the prosecutor, states the sentence the court will impose. MCR 6.302(C)(2) then requires the judge to give a numerically quantifiable term or range and to say that any guidelines range discussed is a preliminary estimate. If the judge later says it cannot sentence as stated, MCR 6.310(B)(2)(b) gives you the choice to affirm or withdraw the plea. The site's page on Cobbs agreements uses the common name for this kind of sentence statement.

Withdrawal has limits. You may withdraw any plea until the court accepts it (MCR 6.310(A)). After acceptance and before sentence, a plea may be withdrawn only in the interest of justice, and not if withdrawal would substantially prejudice the prosecutor (MCR 6.310(B)(1)). Misconduct before sentencing, such as missing court or violating bond, can cost you the right to withdraw when a sentence agreement is not followed (MCR 6.310(B)(3)). If a plea is withdrawn, the case may go to trial on any charges that were or could have been brought (MCR 6.312).

What a trial involves

Article 1, section 20 of the Michigan Constitution gives you the right to a speedy and public trial by an impartial jury, which may have fewer than 12 jurors for misdemeanors punishable by not more than 1 year. In district court the criminal jury is 6 people and the verdict must be unanimous (MCL 600.8355). In circuit court the jury is 12 unless the parties agree, with the court's consent, to fewer, and the verdict must be unanimous (MCR 6.410(A), (B)).

You may give up the jury and be tried by the judge alone, but only with the prosecutor's consent and the court's approval (MCR 6.401; MCL 763.3(1)). The judge then must find the facts specially and state conclusions of law on the record (MCR 6.403).

A trial takes time: motions, jury selection, witnesses and days in court. It keeps every right a plea gives up and holds the prosecutor to its burden of proof. It also means a jury or judge decides the verdict, and if you are convicted, the sentence is set within the penalty the statute allows, with no sentence agreement in place. The plea or trial article in the domestic violence guide, plea or trial in a CSC case and plea agreements in OWI cases go deeper by charge.

Questions to work through with your lawyer

Because the decision is yours, it helps to go in with specific questions. These follow from the rules above; none of them has a standard answer:

• What evidence does the prosecutor have on each element of each charge, and what has discovery shown so far?
• What exactly is the offer: which charge, which plea, and is there an agreed sentence, a recommendation or nothing about sentence?
• What are the maximum penalty and any mandatory minimum for the charge in the offer, and for the charges if the case goes to trial?
• What lasting effects come with the plea charge, such as on a driver's license, firearm rights, immigration status or the chance of a later set-aside?
• If the judge will not follow the agreement, can I withdraw the plea, and is there a deadline to accept the offer?

What to do next

Write down the offer as it was described to you, including any deadline, and ask your lawyer to show it to you in writing. The sibling guide on questions to ask a criminal defense lawyer has more, and probation vs. jail vs. delayed sentence explains sentencing terms that often appear in offers.

Make the decision with a lawyer who has read the evidence in your case. The office of Attorney Shawn Haff offers a free consultation at 616-438-6719, answered 24/7, and the practice areas page lists the charges the office handles.