A Staff Report from the Straight Dope Science Advisory Board

What's the difference between "guilty" and "no contest"?

August 30, 2005

Dear Straight Dope:

A legal story in the news stirred up a long-running question of mine: What is the difference between pleading "guilty" and "no contest"? Online research suggests the line between the two is fairly thin--it seems that pleading "no contest" provides some measure of insurance against civil suits arising from a criminal conviction. I still don't get it. If "no contest" is just "guilty" with benefits, why bother to have "guilty" hanging around like some second string quarterback?

There are some key differences between "no contest" (or if you wish to be lawyerly, "nolo contendere") and "guilty."

To begin with, it's important to understand the requirements for a guilty plea. A court can't simply accept a guilty plea from a defendant; the judge must be convinced that the plea has a factual basis. Generally, this means that when a guilty plea is entered, the state must provide a summary of its case, telling the judge in essence, "Had we gone to trial, the state would have offered the following evidence." In addition, the defendant is often required to admit, in his own words, exactly what he did. This is called allocution, and is part of the factual basis the judge needs to accept the plea. In addition, the judge must engage the defendant in a colloquy, a short discussion to ensure that the accused understands the effects of his plea and the rights he's giving up.

Conversely, the judge generally can't accept your guilty plea if at the same time you're steadfastly proclaiming your innocence. That's what happened in the case of Kathleen Soliah, a member of the Symbionese Liberation Army. The SLA had kidnapped heiress Patty Hearst, plotted to kill several government officials, and bombed two police cars. After her arrest, Ms. Soliah pleaded guilty to bombing the police cars only to immediately inform reporters that she was innocent and had been coerced into pleading guilty. This sort of announcement doesn't inspire confidence in the criminal justice system, so the judge in Ms. Soliah's case refused to accept her guilty plea. She subsequently made a clear statement of guilt in court and again entered a guilty plea, which was accepted.

In ages past, at English common law, an accused could ask for the court's mercy without actually admitting guilt. The ancestor of today's nolo contendere plea, this was a compromise. It permitted a defendant to say, in effect, "Although I deny committing the acts of which I am accused, I don't wish to contest them at trial."

The court doesn't have to accept such a plea. In cases like Kathleen Soliah's, where the administration of justice would be called into question, the court can insist on either a trial or an unambiguous admission of guilt. But a no-contest plea has advantages for both the court and the defendant. For the court, it offers a quick resolution to a potentially troublesome case. For example, Vice President Spiro Agnew was permitted to plead nolo contendere to a charge of falsifying federal tax returns in 1973, presumably because the court wanted to dispose of the matter quickly while the country was embroiled in the Watergate scandal. 

For a criminal defendant, pleading no contest enables him to deny the act at a later civil trial. An accused may find this useful when the criminal penalties are light compared to the cost of a trial, but the potential civil penalties are great. For example, an actor accused of punching a pushy photographer may plead no contest to the criminal charge of assault and pay a small fine or do community service, and still fight the photographer tooth-and-nail on a million-dollar civil suit.

The rules for these pleas vary somewhat among the fifty states and in federal criminal practice. In some cases it's possible to enter a plea of no contest while actively proclaiming your innocence, as Ms. Soliah tried to do. We learn this from a case involving one Alford, accused of first-degree murder in North Carolina in 1963. While protesting his innocence, Alford pleaded guilty to a reduced charge of second degree murder to avoid the death penalty. He later tried to vacate his plea, claiming that it was coerced by fear of the death penalty. The Supreme Court ultimately heard the case and decided that a defendant may conclude that his best interests lie in pleading guilty to a lesser charge while maintaining his innocence, and that this alone does not make his plea coerced. The state does not have to accept such a plea, but it may accept it without constitutional defect.

The difference between pleas based on that case ("Alford pleas") and traditional nolo contendere pleas is small. A traditional nolo contendere plea is a refusal to admit guilt; an Alford plea actively asserts innocence. Both are accepted only at the discretion of the court, and can't be used against the defendant in a later civil action. Because there's no rule forcing the court to accept such pleas, they're not quite analogous to first- or second-string quarterbacks. Think of the nolo contendere plea as a special teams player, brought out only when the circumstances are right.

Sources

NORTH CAROLINA v. ALFORD, 400 U.S. 25 (1970)

"Harmonizing Substantive Criminal Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas," Cornell Law Review, Volume 88, Number 6, July 2003

Department of Justice, United States Attorney's Manual, Title 9, Criminal Resource Manual, 623 Pleas (Federal Rule of Criminal Procedure 11)

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