A plea colloquy is the conversation between a judge and a criminal defendant after the defendant enters a plea of guilty or nolo contendere, but prior to the judge accepting the plea. The plea colloquy is intended to ensure that the defendant is making the plea knowingly, intelligently and voluntarily.
A plea is the formal answer of the criminal defendant regarding the criminal activity with which the defendant is charged. The criminal defendant may plead guilty, plead not guilty (and thus deny the charges altogether), or plead nolo contendere (the direct Latin translation of “no contest” where the defendant does not admit guilt to the crime but still accepts the conviction). The sentencing by the judge follows the pleading of the criminal defendant. If the criminal defendant pleads not guilty, then the procedure leads to trial.
The essential purpose of a plea colloquy is to guarantee the criminal defendant’s Constitutional rights by ensuring that the defendant makes the plea knowingly, voluntarily, and intelligently. The plea colloquy also serves to fulfill the court’s duty to ensure that the criminal defendant has been fully informed of the consequences of their pleading. The court must establish that the defendant understands the direct repercussions of the plea, such as the descriptions of the possible punishment (e.g., the mandatory minimum sentence of the crime charged) and the types of rights and procedures that the defendant forfeits by the pleading, such as the right to a trial by jury.
During a plea colloquy, the judge or, in some cases, another judicial official directly addresses the criminal defendant in an open court. The judge looks to find if the court has fully provided the criminal defendant with the required information for the reasonable person of ordinary intelligence about the consequences and results of the plea during the conversation. The court then inquires of the criminal defendant if they had received and understood each of the protections provided by the U.S. Constitution. Then, the court must receive an affirmative answer from the defendant that they give the plea voluntarily. Many courts rely on a specific script containing the questions. Adhering to the script, the judge will ask the questions to the defendant and the defense counsel.
If it is determined that the court has not provided the criminal defendant with sufficient information, then the court must accommodate the defendant by providing them with the consequences and the legal ramifications of their action that was omitted or inadequately explained. If the criminal defendant finds out that the court has failed to provide adequate information to them, then the defense counsel may invoke a collateral attack on the plea. A collateral attack challenges the validity of the judgment. The defense counsel may invoke a collateral plea because the criminal defendant’s fundamental rights have been violated due to a failure of due process. The original guilty plea will become void if the collateral attack is successful and the criminal defendant will be awarded another opportunity to enter a new plea.
See: Boykin v. Alabama, 395 U.S. 238 (1969), State v. Epps, 126,110 (Kan. Ct. App. Dec. 8, 2023), Criminal Jury Instructions & Model Colloquies.
[Last updated in January of 2024 by the Wex Definitions Team]
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