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Nolo Contendere – The Third Plea in a Criminal Case

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Nolo Contendere – The Third Plea in a Criminal Case

Not like you see in TV drama, this is how the “no contest” plea works. Is this something that could help unclog our court systems if used more?

The U.S. district courts and many state jurisdictions permit criminal defendants to enter a plea of nolo contendere which simply means, “no contest“.  In this type of plea bargain the defendant resolves the pending charges, without actually admitting guilt.

If a nolo plea is accepted by the court it has the same force and effect as a plea of guilty and the judge may impose the same penalties as if the defendant pleaded guilty or was convicted after trial. For example, if the charge was a felony, the defendant becomes a felon and incurs the disabilities that are consequences of that status.  However nolo pleas to felonies are rarely permitted by the courts as a matter of public policy.  No matter the level of the charge, a defendant has no absolute right to enter such a plea.  Acceptance is at the discretion of the presiding judge.

Before a no contest plea is accepted in the federal courts, the judge must take into consideration the views of the government, the victims, and the accused, as well as whether the plea furthers the administration of justice and the public interest.  Federal judges may also allow a defendant to enter a conditional nolo plea, providing the government consents, so that pretrial motions already decided may be reviewed by an appeals court.  While nolo pleas can be made orally, conditional ones in federal court must reserve in writing this right of appeal. If the defendant wins an appeal of a pre-trial decision, he or she may then withdraw the nolo plea.

Preserving the Original Definition of Debate

A major benefit to a defendant entering a plea of no contest is that it cannot be used against him or her in subsequent civil actions, including, in some jurisdictions like California, in subsequent administrative actions.  This means a victim or the state must fully re-litigate the issues underlying the nolo plea, in new proceedings.

In jurisdictions where a no contest plea is impermissible, a defendant may offer an “Alford” plea.   For example, the nolo plea is not recognized by the New York State Criminal Procedure Law.  However, a defendant may enter, with the consent of the prosecutor and the court, an Alford plea (sometimes known as an “Alford-Serrano” plea).  By doing so the accused maintains innocence of the charges, but believes he or she cannot win the case at trial.  If accepted the consequences in the criminal court are the same as a plea of guilty or conviction.  Unlike a no contest plea, this criminal conviction is conclusive proof of the underlying facts, such as negligence or malice. Thus in any subsequent civil case, the plaintiff would not need to retry the matter, but only to introduce the certificate of conviction in order to win a judgment. And if an Alford-Serrano plea is accepted in a drunk-driving case, the NYS Department of Motor Vehicles may still proceed with automatic license revocation and imposition of civil fines.

#OpenStockholm - At Their Best in the Midst of the Worst

This “Third Plea” in a criminal case, nolo contendere, where permitted, while controversial with the general public, speeds up the criminal justice system and affords some relief to the accused.  Do its benefits outweigh its downside?  Depends on your part in any given proceeding.


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Martin Schwartz
About Martin Schwartz 13 Articles
Martin Schwartz was a N.Y. police officer, a U.S. Treasury Special Agent (criminal investigator) attached to the U.S. Customs Service, an assistant district attorney in NYC, a special assistant U.S. Attorney in the Southern District of New York (Manhattan) and a special counsel to the U.S. Department of Justice. He is now a writer with prior published work in the N.Y. Times, U.S. News & World Report, U.S.A. Today and Newsday, and a consultant to law enforcement.
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