For the Defense - Vol. 9, Issue 3 - 34

A Secret Third Option: Nolo Pleas
and Due Process Protections
1
Spencer Bradley
hile most pleas in the criminal justice system involve
issues of guilt, there is a third option for defendants: the
nolo contendere or " no contest " plea. Recognized since
at least the fourteenth century,2 a plea of nolo contendere means
This type of plea rather than a guilty plea has
W
a defendant " will not contend with the 'prosecuting authority
under the charge.' " 3
separate effects for the disposition of the criminal case and for
potential civil liability. An open-ended question is whether the plea
and conviction can then be utilized for factual determinations as a
collateral consequence.
In its original form, a defendant pleading no contest requested a
fine, but other jurisdictions would allow a term of imprisonment.4
The plea would act as a conviction for purposes of punishment and
legal consequences; however, it did not civilly prevent a defendant
from contesting those facts.5
As the criminal justice system developed, the use of a nolo
contendere plea remained recognized and adapted with the
professionalization and expansion of prosecution.6
The reasons for
the plea are clear: it resolves the current case, either by agreement
to the punishment or without trial, and protects a defendant civilly.7
34 For The Defense l Vol. 9, Issue 3
In Hudson v. U.S., the United States Supreme Court held that,
contrary to common law historical tradition limiting the use of
nolo contendere pleas to misdemeanor cases or fines, a Court may
impose a prison sentence.8
The Court reasoned that the " implied
confession, " of a nolo plea has two primary effects: the first is
the lack of estoppel in contesting the underlying facts in separate
proceedings.9
The second effect is that it acts as a plea of mercy
and an acquiescence to be punished as if one was guilty within the
confines of the present case.10
The nolo contendere plea would continue to remain a distinct
type of plea a defendant may enter. While the federal courts
recognize both the nolo contendere plea and the so called " Alford "
plea,
these
options
remain analytically
plea merely acknowledges that a guilty plea does not require a
defendant to admit guilt to be constitutional. By contrast, a nolo
contendere plea " admits that the allegations, if proven, meet the
elements of the offense or offenses charged. " 12
However, while
a legal acknowledgment of the potential likelihood of guilt and
consent to punishment, the plea does not admit to the veracity
of the allegations or personal culpability. Thus, there are civil and
evidentiary protections that a nolo contendere plea provides for
that a guilty verdict would otherwise prohibit.
distinct.11 An Alford

For the Defense - Vol. 9, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 9, Issue 3

Contents
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For the Defense - Vol. 9, Issue 3 - Contents
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