Criminal Law

"No Contest" Pleas (Nolo Contendere)

By Micah Schwartzbach

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Most criminal cases end by plea bargain. In a typical case, the defendant pleads guilty—instead of going to trial—in exchange for something from the prosecution. This “something” is usually a conviction on a less serious charge, a recommendation that the judge impose a lighter sentence, or both. By formally admitting culpability, the defendant avoids the risk of losing at trial and getting harsher punishment.

Guilty pleas settle lots of cases, but not all. Sometimes prosecutors and judges agree to accept pleas of “nolo contendere,” Latin for “I do not wish to contend” or “no contest.”

“No Contest” Basics

A nolo contendere plea has the same basic effect as a guilty plea: The defendant is convicted and accepts punishment. But, by pleading “no contest,” the accused doesn’t actually admit guilt.

Aside from some potential personal satisfaction, “nolo contendere” tends to offer at least one tangible benefit, relating to civil court. No-contest pleas often appeal to defendants looking to avoid an admission of fault in a related civil case.

Suppose Dawson and Van Slyke, out at the same sports bar one night, get into a tussle. In the course of the fight, Dawson punches Van Slyke squarely in the nose, breaking it. The local district attorney’s office reviews the police report of the incident and decides to prosecute Dawson for criminal assault. Independently, Van Slyke hires a personal injury lawyer, who files a civil lawsuit against Dawson.

Traditionally, it would be much better for Dawson to plead nolo contendere than guilty to the criminal charge. That way, the personal injury lawyer wouldn’t be able to argue in civil court that Dawson’s plea means he’s financially liable for Van Slyke’s injuries.

Nolo Contendere Laws Differ

Some states have rewritten the law to allow for the use of at least some types of no-contest pleas in civil court. Consider California’s evidence code, for example. It allows a civil plaintiff to introduce evidence of a defendant’s nolo contendere plea to a crime that could have been punished as a felony. (Cal. Evid. Code § 1300 (2015).)

Let's go back to the Dawson case. If the bar fight had happened in Los Angeles, an assault plea might not have helped Dawson in civil court. Assume he pleaded no contest to assault “with force likely to produce great bodily injury.” That offense is a “wobbler,” meaning that it can be either a misdemeanor or a felony. So, even if Dawson had received a misdemeanor sentence for his nolo contendere plea to this offense, Van Slyke would have been able to introduce evidence of the plea in civil court.

“No Contest” Not a Given

Judge’s Discretion

Defendants can’t enter no-contest pleas as a matter of right. In other words, a judge typically has to allow the defendant to plead nolo contendere. Take the rule in federal court, for example. There a defendant “may plead not guilty, guilty, or (with the court’s consent) nolo contendere.” A judge must consider “the parties’ views and the public interest in the effective administration of justice” before accepting a nolo contendere plea. (Fed. R. Crim. P. 11 (2015).)

Imagine a federal white collar case involving executives who conspired to defraud investors. A judge presiding over such a case might refuse to accept nolo contendere pleas from the defendants, believing that anything short of “guilty” might suggest to the public that the bigwigs were getting lenient treatment.

Factual Basis

In most places, a judge can accept a guilty plea only if there’s a factual basis for it—if there’s enough evidence indicating that the defendant actually committed the crime. This factual basis element can be quite easy to satisfy, but the idea behind it is ensuring that people don’t plead guilty to crimes they haven’t committed. (But see Pleading Guilty While Saying You’re Innocent.)

The law isn’t as straightforward when it comes to nolo contendere pleas. In some states, a judge must find a factual basis for a no-contest plea. In other jurisdictions, the court may accept a nolo contendere plea without exploring whether the defendant is really guilty. For example, the federal rule specifically requires a factual basis for a guilty plea but doesn’t mention the same for nolo contendere pleas. (Fed. R. Crim. P. 11(b)(3) (2015).)

Back to Dawson. Assume for a moment that he had been prosecuted in federal court. To accept a nolo contendere plea, the judge wouldn’t have had to seek assurance that Dawson actually punched Van Slyke or that he did so without legal justification (like self-defense).

Talk to a Lawyer

The law on no-contest pleas varies from state to state and from state to federal court. If you want to know whether pleading nolo contendere is possible—and what the plea would mean—in your state and situation, consult an experienced criminal defense attorney.

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