9.26 - 2. Example Of Attorney Advice To Client

• Jurisdiction: New York

2. Example of Attorney Advice to Client

The following script may be useful before the plea hearing:

It is important that you fully understand the impact of your plea of guilty before you enter it. So feel free to ask me any questions. Once you plead guilty, the judge will not allow you to withdraw your plea if you later change your mind.

By pleading guilty, you give up most of the constitutional rights that you previously had in this case. You have no obligation to plead guilty. You have a constitutional right to a trial. You only give that up if you decide to do so on your own. We have discussed your decision to plead guilty, and I agree with it.

Until you plead guilty, you have a right to a trial by jury or, if you waive a jury trial, a trial by the judge. At the trial, the prosecutor has an obligation to prove every element of every crime charged against you beyond a reasonable doubt. If the prosecutor were to fail to do so with respect to any element, you would have a right to be acquitted. Even if the jury did not acquit you, this issue could be raised on appeal. If you plead guilty, the prosecutor no longer has to prove the case.

At a trial you would have the right to be confronted by the witnesses and see them testify. That right also includes the right to cross-examine them. You give this up by pleading guilty. No witnesses will testify.

At a trial you would also have the right to put on a defense, with the assistance of counsel, and to subpoena your own witnesses and evidence. I would have a right to argue to the jury that you should be acquitted.

You would also have the right to testify in your own behalf if you wished to do so, although you would not be obligated to testify. You would have the constitutional right to remain silent and have the right to an instruction to the jury that your failure to testify could not be construed against you in determining whether the prosecution proved its case. You give up all of these rights by pleading guilty.

If the evidence in the case supported the possible conclusion that you were guilty of a misdemeanor or other lesser-included offense, the jury would be entitled, if it believed your guilt on the offense charged was not established beyond a reasonable doubt, to acquit you on that charge but to convict you of the lesser-included offenses, which could include [list]. If you plead guilty, the possibility of conviction for any of those lesser offenses, other than the one to which you are

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