I'm asking this question in the context of the current Supreme Court case McCoy v. Louisiana in which the fundamental issue is whether it is unconstitutional for defense counsel to concede an accused's guilt over the accused's express objection.

I didn't quite understand this quote from the respondent's brief:

This Court has held that a few important rights—“to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal”—may be waived only with the client’s consent. Jones, 463 U.S. at 751. But “[w]ith the exception of these specified fundamental decisions, an attorney’s duty is to take professional responsibility for the conduct of the case, after consulting with his client.” Jones, 463 U.S. at 753 n.6. In Florida v. Nixon, 543 U.S. 175 (2004), the Court declined to add contesting guilt at the guilt phase of a capital trial to that list. Nixon concluded that strategically conceding guilt in a capital case is not “the equivalent of a guilty plea” and may be defense counsel’s wisest course. Id. at 189- 191. As the Court explained, a “guilty plea is ‘more than a confession which admits that the accused did various acts,’ it is a ‘stipulation that no proof by the prosecution need be advanced.’” Id. at 188 (quoting Boykin v. Alabama, 395 U.S. 238, 242 (1969)). A “plea is not simply a strategic choice; it is itself a 31 conviction.” Id. at 187 (citation and internal quotation marks omitted).

1 Answer 1


The plea is entered before the trial. The concession of guilt happens during trial: the lawyer acknowledges that the defendant did the crime, but argues that it should be overlooked in some way.

For example, Nixon dealt with a death-penalty case where the lawyer's strategy was to admit during the trial that the defendant had killed the victim, but to use the trial to persuade them that the circumstances did not call for the death penalty. You don't get to make those arguments if you enter a guilty plea, which would then strip you of your right to a jury.

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