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Are defendants punished for taking a criminal case to trial?

The right to a trial by a jury is enshrined in the U.S. Constitution. It is intended to make prosecutors prove guilt in a public and transparent manner and to allow defendants to face their accusers and have their guilt or innocence assessed by impartial jurors.

The presumption of innocence protects a defendant, and the prosecutor must prove the charges against them beyond a reasonable doubt- the highest standard of proof in American jurisprudence. Given the importance of jury trials and the high standard of proof, it would be reasonable to assume that they occur in most criminal cases.

Unfortunately, the opposite is true. Here in Colorado, only about 1% of criminal cases actually end in a trial – a figure consistent with averages nationally. The rest of the time, charges that are not dismissed are resolved through plea bargains.

To be sure, there are some benefits – on both sides – to relying on plea bargains. But it is likely that plea bargains would not be used nearly as often if not for a phenomenon known as the “trial tax,” which arguably gives prosecutors even more power than they already had.

What is the trial tax?

Here is how a plea bargain often goes: The prosecutor meets with a defendant or, if represented, with their defense lawyer. The prosecutor discusses the potential charges, the potential sentence if convicted and the strength of the prosecution’s case (which they always try to portray as strong).

The prosecutor says that if the defendant agrees to plead guilty and forego a trial, the state will seek a more reasonable sentence and may even decline to bring certain other charges. If the defendant chooses to go to trial, however, the deal will be rescinded. The prosecutors will then pursue all charges, and they may add new charges and seek a sentence at or near the allowed maximum.

In many cases, the defendant will face a mandatory sentence if convicted. The prosecutor hints that the judge will not be pleased if they waste the court’s time with a trial, only to be found guilty, and that failure to take a plea will show the judge they are not accepting responsibility for the crime.

This leaves the defendant in a difficult position. If they choose to exercise their right to a jury trial, they risk a much harsher sentence if they lose. If they take the deal, they face a certain-yet-smaller sentence but lose the chance to clear their name in a trial and to force the prosecution to prove the charges against them beyond a reasonable doubt.

The fact that only 1% of cases make it to trial is a testament to how effective the trial penalty threat is.

Is there a way around the trial tax?

If you’ve been accused of a crime, the chances are good that a prosecutor may offer you a plea deal, backed by the threat of the trial tax. This isn’t always a bad thing because taking a plea deal can be your best option in some cases. But you should never accept a plea deal out of fear alone or because of a threat that things will be much worse if you decide to exercise your constitutional right to force the prosecution to actually prove the charges against you.

Before you make any decisions, you should have a highly experienced and aggressive criminal defense attorney by your side. There isn’t necessarily a way to avoid the threat of the trial tax. Still, you are better equipped to handle it in consultation with your own attorney and to separate idle threats intended to avoid the time and effort of a trial with true risks that need to be carefully considered.

Unfortunately, prosecutors often have more success threatening the trial tax with indigent defendants who are forced to rely on overworked and underfunded public defenders. If you can afford a private attorney, you likely have more options at the beginning of the process and better protection throughout.

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