How do you wish to plead?
“I do not wish to contend.” Defendant who enters a plea of nolo contendere neither admits nor disputes the charge. A plea of no contest allows defendant to avoid admitting facts, which subsequently could be used in another action. Notably, neither a plea of no contest nor a guilty plea per se bars a federal civil rights action for the use of excessive force during arrest.1 While scholars debate the propriety of no contest pleas,2 they remain viable options in all courts, but are always subject to approval by the court.
A no contest plea has the same effect in the criminal prosecution as a guilty plea or conviction. It subjects defendant to the same fines, costs, and forfeitures; it becomes a criminal record. It may enhance a subsequent sentence. A no contest plea to a felony bars the right to possess a gun. If the charge is a registrable sex offense, all the registration requirements apply. Whatever the effects of a guilty plea or a conviction after trial on the substantive charge are the same for a no contest plea.
The Supreme Court endorses plea bargaining and no contest pleas.3 However, state law (and a court’s own practices) determines whether and how a defendant may plead no contest. Generally, courts are amenable, but no contest pleas are not a right. Some judges will not accept such pleas if the prosecution objects or for other reasons. In some jurisdictions, a no contest plea prevents a defendant from admission to any diversion programs. The federal rules allow a nolo contendere plea only if the court considers the parties’ views and the public interest in the effective administration of justice.4
The effects of a no contest plea in a subsequent civil action or on professional licenses varies across jurisdictions, federal and state, and depends on whether the charge was a felony or misdemeanor, and in some jurisdictions, it depends on the seriousness of the charge. Under the federal rules of evidence (and in those states that parallel those rules), a no contest plea is not admissible in a civil action, subject to specified exceptions.5 In California, a no contest plea is deemed a conviction with regard to licensing for pharmacists, but a no contest plea to a misdemeanor cannot be used as evidence against the defendant in a civil case. This is generally the prevailing rule.
While all pleas may be challenged on appeal for voluntariness, the effect on the right to appeal other issues depends on the terms of the plea deal and otherwise varies across jurisdictions. In Texas, for example, a defendant who entered a no contest plea may appeal only from written pretrial motions actually ruled upon by the court.6 This appears to be the prevailing rule.
The related Alford7 plea differs from the plea of no contest in that the defendant maintains innocence, but acknowledges the prosecution has sufficient evidence to convict at trial. No appeal is allowed, except to challenge the voluntariness of the plea. Most state courts hold that an Alford plea is the functional equivalent of a regular guilty plea, not just in the criminal case, but also in subsequent litigation, criminal or civil. Presently, only Indiana, Michigan and New Jersey, do not allow Alford pleas.
1 Haring v. Prosise, 462 U.S. 306 (1983).
2 See, e.g., Stephanos Bibas, Harmonizing Substantive-Criminal-Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas, 88 Cornell L. Rev. 1361 (2003) Available at: http://scholarship.law.cornell.edu/clr/vol88/iss5/3
3 See Santobello v. New York, 404 U.S. 257, 260-61 (1971)
4 Fed. R. Crim. P. 11.
5 Fed. R. Evid. 410(a) and (b).
6 Tex. Rules of App. Proc. Rule 25.2(a).
7 North Carolina v. Alford, 400 U.S. 25 (1970).
IMAGE: Jury box, Howard M. Metzenbaum U.S. Courthouse, Cleveland, Ohio by Carol Highsmith (image is in the public domain)