Nolo Contendere

The Latin term nolo contendere, better known as “no contest,” is one possible plea to a criminal charge. A “no contest” plea is very similar to a guilty plea. However, the difference here is that a defendant who enters a nolo contendere plea agrees to be convicted and punished for a crime, while not actually admitting that he is guilty. To explore this concept, consider the following nolo contendere definition.

Definition of Nolo Contendere

Pronounced

-lō  kuhn-ten-duh-ree

Noun

  1. A defendant’s plea to a criminal charge, which does not admit guilt, but subjects him to punishment as though a guilty plea had been entered.

Origin

1870-1875       Latin    (“I am not willing to contend”)

Nolo Contendere Plea

According to the U.S. Bureau of Justice Statistics, about 95% of all criminal convictions are the result of the defendant pleading guilty – or nolo contendere – as part of a plea bargain. What this means is that the defendant agrees to plead guilty instead of going to trial – so long as he receives an incentive from the prosecution to do so. Such an incentive may be a conviction on a less serious charge, the prosecution’s recommendation that the defendant be given a lighter sentence, or both.

Where a nolo contendere plea differs, however, is that the defendant who enters a nolo contendere plea does not actually admit that he is guilty of the charges against him. He will, however, agree to be convicted and punished for the crime. Why would anyone do this? The main reason someone would plead nolo contendere would be to avoid being responsible for damages in a related civil case.

For example:

Dominick and Eugene get into a fight over a girl, during which Dominick punches Eugene in the face, breaking Eugene’s nose. A police report is filed, and after reviewing it, the local district attorney decides to press charges against Dominick for criminal assault.

Eugene later decides to hire a personal injury attorney to help him file a civil lawsuit against Dominick. It would be better for Dominick to plead nolo contendere in the criminal case, rather than guilty. This way, the personal injury lawyer would not be able to argue in civil court that Dominick’s plea itself leaves him responsible for paying for Eugene’s medical care.

Alford Plea

An Alford plea, also known as a “Kennedy plea” in West Virginia, is very similar to a nolo contendere plea. This is because an Alford plea is another type of guilty plea offered in criminal court, however in addition to a defendant denying guilt, he also proclaims his innocence. When entering an Alford plea, a defendant admits that the evidence that is in the prosecution’s possession would likely be enough to convince a judge or jury to find the defendant guilty beyond a reasonable doubt. However, in spite of this, the defendant claims he is innocent of the charges against him.

The Alford plea is named after Henry Alford, the defendant in a U.S. Supreme Court case from 1970. Here, Alford had been indicted for first-degree murder seven years prior. Evidence against Alford included testimony from witnesses that Alford had admitted to killing the victim. Alford had left the house, after which the victim opened his door in response to a knock, and was fatally shot.

If convicted, Alford faced the death penalty, which was the default sentence for such a crime in North Carolina at the time. Alford took a plea bargain in which he pled guilty to second-degree murder, all the while claiming he was innocent. The judge in Alford’s case accepted his plea and sentenced Alford to 30 years in prison.

If Alford had instead plead guilty to first-degree murder, he would have possibly received a life sentence, rather than the death penalty, but he did not want to admit he was guilty. Instead, Alford pled guilty to second-degree murder, after initially contesting the charge, saying he was doing so to avoid being convicted of first-degree murder and receiving the death penalty.

Alford appealed, saying he was coerced into pleading guilty by the threat of the death penalty hanging over his head. However, despite Alford’s claims of innocence, the Supreme Court held that his guilty plea should stand due to the fact that evidence existed to prove Alford’s guilt. Alford died in prison in 1975.

Difference Between Nolo Contendere and Guilty Pleas

There are several differences between nolo contendere and guilty pleas. The major difference between nolo contendere and guilty pleas is the fact that the defendant is not admitting his guilt when he pleads nolo contendere. He can thereby avoid having his plea used against him in a related civil lawsuit later on.

Another difference between nolo contendere and guilty pleas is a defendant is not entitled to enter a nolo contendere plea in the same way that he has the right to enter a plea of “guilty” or “not guilty.” According to Rule 11 of the Federal Rules of Criminal Procedure, a judge must consider the views of those involved before allowing a defendant to plead nolo contendere. The judge must also consider the “public interest in the effective administration of justice.”

An example of nolo contendere being denied can be found in a case involving a group of executives who conspired to defraud their investors. The judge presiding over a case like this may refuse to accept nolo contendere pleas, believing that anything short of a guilty plea, or conviction by a jury, may send the wrong message to the public. If the judge were to accept a plea other than simply “guilty,” it may appear to the public that the big-wigs received lenient treatment from the judge.

Effect of a No Contest Plea

The effect of a no contest plea is the same in the short term as a guilty plea. However, there may be residual effects of a no contest plea later on, or even consequences in related actions in the future.

For example, nolo contendere pleas may receive the same penalties and fines that a conviction from a guilty plea would receive. However, a defendant pleading nolo contendere may be required to make an allocution of his charges. This means that the defendant may be required to make a statement defending his reasons as to why he should receive a more lenient sentence.

An additional effect of a no contest plea is that, should a related civil lawsuit be filed in the future, a conviction on a nolo contendere plea may not be used to prove negligence, malice, or even whether the acts in question were committed at all.

Harvey Waiver

When someone agrees to plea nolo contendere while accepting a Harvey waiver, this means that one or more charges against him have been dismissed as part of a plea bargain. Further, the defendant must understand that the Harvey waiver carries with it serious consequences, including:

  • The dismissed charges can be taken into consideration in the court’s sentencing decision; or
  • That any restitution linked to the dismissed charges can still be determined by the court and possibly even ordered to be paid, despite the charge(s) being dismissed.

In other words, while the defendant is being allowed to plead nolo contendere, and some charges are technically being “dropped,” the judge will be considering those other charges when determining sentencing. The sentence a defendant might receive will likely include the sentence he would have received for the dropped charge(s).

Further, agreeing to a Harvey waiver means the defendant is still responsible for paying the same fines and restitution that he would have had to pay as part of the sentence for the dropped charge(s). In a nutshell, if a defendant agrees to a Harvey waiver, the charge is dropped from his record, but the penalties he would have received for that charge still remain.

The Harvey waiver is specific to the state of California, though most other states have similar laws by different names.

Nolo Contendere Example Involving a DUI Charge

An example of nolo contendere can be found in a case from 2016 out of Grand Island, New York. Here, Isais Miguel was arrested on February 21, 2016 on a charge of Driving Under the Influence after he was found to be driving erratically down the highway. This was Miguel’s third offense, making it a Class 3A felony. Miguel was also charged with a misdemeanor for driving on a suspended license, but this charge was ultimately dropped.

Immediately after Miguel’s arrest, he was taken to a local hospital to have his blood drawn. The authorities did not have a warrant for the blood draw. Miguel agreed to plead no contest to the DUI charge, and the district court judge set a date for sentencing.

However, before his sentencing could take place, Miguel asked for permission to withdraw his no contest plea. This was because Miguel, in doing his research, found approximately 20 cases wherein a blood draw performed without a warrant had been ruled an illegal search and seizure. The court adjourned the case to later on in the week for sentencing purposes, however this was not to be the end of Miguel’s criminal career.

Miguel was arrested again on February 28, this time for attempted murder. Miguel stabbed Victor Schoenheit in the neck after attempting to steal the man’s guitar shortly after Schoenheit got off of a bus in Grand Island. Miguel was charged with robbery, use of a weapon in the commission of a felony, and criminal attempt at first-degree homicide. Schoenheit received stitches for injuries to his face, as well as surgery on his neck.

Related Legal Terms and Issues

  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Plea – A defendant’s response to criminal charges or a legal declaration.
  • Plea Bargain – An agreement between the prosecutor and defendant in which the defendant agrees to plead guilty to some of the charges, or a lesser charge, in exchange for a reduced sentence, or some other concession by the prosecution.
  • Prosecution – The government attorney tasked with charging and trying a case against an individual who has been accused of a crime.
  • Restitution – The restoration of rights or property previously taken away or surrendered; reparation made by giving compensation for loss or injury caused by wrongdoing.

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