How Do You Plead, Guilty or Not Guilty?: Does the Plea Inquiry Violate the Defendant's Right to Silence?

49 Pages Posted: 21 Jun 2004 Last revised: 23 Oct 2008

See all articles by Robert F. Cochran

Robert F. Cochran

Pepperdine University - Rick J. Caruso School of Law

Date Written: 2005


Early in every criminal case, the trial judge or magistrate asks the defendant a question which probably violates the defendant's right to silence: "How do you plead, guilty or not guilty?" The defendant confronts the "cruel trilemma," often condemned by the Supreme Court, of lying, confession, or silence in a situation where silence implies guilt. The plea inquiry raises all of the problems that have led the Court to prohibit questioning in other contexts. It interferes with the defendant's dignity, autonomy, and privacy. It is inconsistent with the adversary system, implying that the defendant has a responsibility to establish his innocence. The plea inquiry is a remnant of a day when England had many elements of an inquisitorial system.

Of course, the common practice is for defense attorneys to instruct defendants to plead "not guilty" at the plea inquiry, irrespective of their guilt. This practice has deep roots in English history and it probably has enabled courts to avoid dealing with the constitutional problems of the plea inquiry. But the "remedy" to the plea inquiry's constitutional problems has its own problems. The false "not guilty" plea unnecessarily alienates the defendant from the victim and the public, reinforces any inclination the defendant might have had to lie, reinforces a tendency on the part of lawyers to assist clients in lying, and adds to the cynicism which lawyers, clients, and the public feel toward the criminal justice system. This practice merely steers the defendant toward one of the trilemma's "cruel" options-lying. The constitutional, social, and moral problems of the plea inquiry might be worth it if it served a significant purpose, but it does not. All the plea inquiry does is signal whether the defendant will take his trial or not. Rather than pose the current plea inquiry, courts could ask the defendant whether he will plead "guilty" or take his trial or, in the alternative, courts could merely assume that the defendant will take his trial, in the absence of a defendant motion to the contrary.

Keywords: criminal, guilty, plea, defendant, right to silence

JEL Classification: K14

Suggested Citation

Cochran, Robert F., How Do You Plead, Guilty or Not Guilty?: Does the Plea Inquiry Violate the Defendant's Right to Silence? (2005). Cardozo Law Review, Vol. 26, No. 4, 2005, Available at SSRN: or

Robert F. Cochran (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

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