The Rights a Defendant Waives: Qualification Guide for Defense Attorneys

As a service to members of the Maryland Bar, below you will find a typical criminal litany given by the defense attorney to the defendant before a guilty plea is accepted. Different lawyers have different styles when advising a defendant of the rights he/she is giving up in exchange for a guilty plea. This framework is typically effective and comprehensive as long as the proper elements and below questions are included.

As an experienced Maryland criminal defense attorney, I have essentially given the same litany over 5,000 times in Circuit Courts throughout Maryland, dating back to my days as a felony Public Defender in Baltimore City (1991-1994). There are rare occasions when this litany needs tweaking due to the uniqueness of a particular case, but you should feel confident in using this verbatim in almost all instances.

Introduction:

• Please state your name and address for the record
• How far did you go in school?
• Can you read and write the English language?
• Are you presently under the influence of alcohol, illicit drugs, or prescription drugs?
• Have you ever been a patient in a mental hospital or received psychiatric care?
• Is your mind clear and do you understand what you are doing here today?

 

The Crime and Terms of the Plea:

It is my understanding that you are electing to plead guilty to one count of (charge)
The elements of (charge) the state has to prove for you to be found guilty are (name elements of charge)
In exchange for your guilty plea the terms of the plea agreement are as follows: [choose 1] a) the state has agreed to recommend_________ or the Court has bound itself to a sentence of ______________.
By proceeding in this manner, you are waiving your right to a trial.

 

Waiving of Trial Rights:

You have the right to a jury trial. A jury trial consists of 12 individuals, chosen from the motor and voter rolls of (Baltimore City or County).

Those 12 individuals will listen to the facts of your case and determine your guilt or innocence based upon a standard of beyond a reasonable doubt. That is 12-0 guilty or 12-0 not guilty. Any split in the vote is what we call a hung jury. In the event of a hung jury, the assistant state’s attorney, at his/her discretion, could keep retrying your case, over and over, until there was a unanimous decision one way or the other.

You also could waive your right to a trial by jury and have a court trial before this judge or another judge of this court. In the event of a court trial, the judge would listen to the facts of your case and determine your guilt or innocence based upon the same standard of beyond a reasonable doubt.

Regardless of whether you chose a court trial or a jury trial, during a trial you have an absolute right to testify. You can take the witness stand ─ under oath ─ and tell the judge or the jury your side of the story.

If you chose not to testify, in a jury trial, this judge would instruct the jury that they are absolutely prohibited from holding your silence against you. In the event of a court trial, I assure you that no judge in this courthouse would ever hold your silence against you.

By pleading guilty and waiving your right to a trial you are also waiving several more important constitutional rights, the first of which is confrontation of your accuser.

It is my understanding that one or more would be called by the state to testify against you in this case. I, as your attorney, would have the absolute right to cross-examine those witnesses and ask them any legal or factually relevant questions.

You would have the right to call any witness to the stand to testify on your behalf. If any witness was reluctant to testify, we can ask the sheriff to bring that witness to court.

Also, by pleading guilty you are waiving your right to all factual and legal defenses. By factual defenses, I mean, for example, the drugs were not mine, or I was in Alaska when the crime occurred in Maryland.

By waiving all legal defenses, you are giving up your right to complain, for example, that certain evidence or statements should be suppressed.

 

Parole and Probation/ Immigration Consequences:

Are you currently on parole or probation? If you are, a guilty finding in this case may violate that parole or probation. That matter is between you and the Parole Board or the Judge you are on probation to and is not under the jurisdiction of Judge____ today.

Are you a U.S. citizen? If not, or if you are mistaken, I need to advise you that a conviction in this case could cause you to be deported.

 

Limited Right to Appeal:

Finally, by entering into a plea, you give up an automatic right to appeal and must instead file an application for leave to appeal to the Maryland Court of Special Appeals limited to four specific and narrow areas.

1) Jurisdiction of this court:

It is my understanding that you were 18 years of age or older
(or waived-up juvenile) at the time of your arrest and your arrest occurred in (Baltimore City)?

That being the case, you will not be successful appealing on that ground.

2) Legal Sentence:

It is my understanding that the maximum sentence in your case is ____. The Court has bound itself to a sentence of _______/ or is aware of the maximum sentence. Provided that your sentence does not exceed _____ you will not be successful appealing on this ground.

3) Competence of Counsel:

Are you satisfied with the representation of me and my law firm in representing you?
(optional) Have we done everything you asked us to do?
(optional) have we refused to do anything you asked us to do?
In light of your answers to these questions, you will not be successful appealing on this ground.

4) Voluntary Plea:

The final ground for appeal is whether you are entering into this plea freely and voluntarily.
Has anyone threatened, forced, or coerced you to plead guilty?
Has anyone offered you any promises or inducements, other than the plea agreement, to plead guilty?

Your honor, I submit this is a knowing, intelligent, and voluntary waiver of rights and the defendant is qualified to proceed.

 

Experienced Criminal Defense Attorneys

Silverman Thompson has successfully represented tens of thousands of defendants. If you have questions regarding plea deals, probation, or taking your case to trial, please reach out to me, Steven D. Silverman, at 410-385-2226.