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David O. Smith - November 2020



Our Federal and State Constitutions guarantee one accused of a crime the right to a fair trial and to confront one’s accusers. However, the right to trial for the vast majority of criminal defendants is disappearing due to the “trial penalty” imposed by prosecutors.

 In today’s criminal justice system, the defendant is forced to make a choice between pleading guilty or going to trial. The problem is the “trial penalty” which refers to the difference offered in the penalty before trial for a plea versus the substantial sentence the defendant could receive at trial if found guilty.

This penalty is now so severe it has eliminated 97% of criminal trials. This has technically obliterated the 6th Amendment right to a jury trial. The most severe criminal penalties are imposed on those who dare to go to trial and are found guilty. However, of those going to trial, many are found innocent or guilty of a lesser charge.

An example of the trial penalty is to plead guilty in return for a sentence of five years probated for five years. If that same person goes to trial, the maximum penalty to be imposed could be 15 years in prison. What an incentive for an innocent person to plead guilty to avoid prison time if he/she were convicted.

Some will say the defendant would not be faced with this choice if he/she had not done something wrong. But, that’s not true. Even with the right to a jury trial and experienced defense attorneys, many innocent defendants will plead guilty to avoid the possibility of an incorrect guilty verdict.

This is an issue that has to be dealt with quickly or our criminal justice system will be forever altered.


- David O. Smith




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Please Note: David Smith, Marcia Smith are independent attorneys with individual areas of practice.