If you don’t take a plea deal, your case goes to trial. The prosecutor’s offer comes off the table, you face the original charges (often more serious than what the plea would have reduced them to), and a judge or jury decides the outcome instead of a negotiated agreement. That path preserves your right to make the government prove every element of its case, and it preserves your right to appeal, but the numbers are sobering: roughly 90% of federal criminal defendants plead guilty, and only about 2% go to trial and win an acquittal.1Pew Research Center. Fewer Than 1% of Federal Criminal Defendants Were Acquitted in 2022 Rejecting a plea is sometimes the right call. It is never a small one.
The Trial Penalty
The most important consequence of rejecting a plea is what defense lawyers call the trial penalty. Defendants convicted at trial routinely receive significantly harsher sentences than those who plead guilty to the same conduct. In federal cases, trial sentences average roughly three times higher than plea sentences, and in some cases the gap is wider.
Part of that gap is built into the federal sentencing guidelines, which offer a two- or three-level reduction in a defendant’s offense level for “acceptance of responsibility.” The reduction almost always requires a timely guilty plea.2United States Sentencing Commission. Guidelines Amendment 775 A defendant who goes to trial and loses is nearly always denied it, because the guidelines say the reduction is “not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt.” In rare cases a defendant can preserve the reduction by going to trial solely on a legal challenge rather than contesting the facts, but that is uncommon.
The guidelines math is only half of it. Plea offers often involve the prosecutor dropping or reducing charges. Reject the deal and you face the original, more serious counts, which carry higher statutory maximums. The judge then has broad discretion within that range and must weigh factors like the seriousness of the offense, deterrence, and protection of the public.3Office of the Law Revision Counsel. 18 US Code 3553 – Imposition of a Sentence None of this means trial is always the wrong choice. The evidence may be weak, the plea offer may be barely better than the worst-case scenario at trial, or there may be strong legal defenses. But the sentencing math has to be part of the decision.
How Long Until Trial
Rejecting a plea sets the formal trial machinery in motion. In federal court, the Speedy Trial Act requires trial to begin within 70 days of indictment or the defendant’s first court appearance, whichever comes later.4Office of the Law Revision Counsel. 18 USC 3161 – Time Limits and Exclusions In practice, a lot of time gets excluded from that clock: pre-trial motions, continuances both sides agree to, mental competency evaluations. Months commonly pass between the rejection of a plea and the start of trial. State courts have their own speedy-trial rules with varying deadlines.
During that stretch, the court schedules hearings to manage the case, sets discovery deadlines, and resolves disputes. If you are out on bail, your conditions stay in place. If you are in custody, you stay there unless your attorney argues successfully for release or reduced bail.
Discovery and Pre-Trial Motions
Once the case is on the trial track, both sides exchange the evidence they plan to use. The prosecution has a constitutional obligation under Brady v. Maryland to turn over any evidence favorable to the defense, including anything that suggests innocence or undermines a prosecution witness’s credibility.5Justia US Supreme Court. Brady v. Maryland, 373 US 83 (1963) That covers police reports, witness statements, lab results, and surveillance footage. The defense has its own obligations to share certain evidence it plans to introduce.
Discovery often exposes weaknesses in the prosecution’s case that were not visible during plea negotiations, which sets up the two motions most likely to change the trajectory of the case.
Motion to Suppress Evidence
If the police obtained evidence through an illegal search, a coerced confession, or another constitutional violation, the defense can ask the judge to exclude it. The exclusionary rule, rooted in the Fourth Amendment, prevents the government from benefiting from unconstitutional conduct.6Congress.gov. Constitution Annotated – Standing to Suppress Illegal Evidence A granted suppression motion can gut the prosecution’s case. If a confession or key physical evidence is excluded, the prosecutor may dismiss the case or come back with a much better offer.
Motion to Dismiss
The defense can also ask the court to throw out the charges entirely. A speedy trial violation requires dismissal, and dismissal can be with prejudice, meaning the charges cannot be refiled.7Congress.gov. Constitution Annotated – Amdt6.2.1 Overview of Right to a Speedy Trial Other grounds include prosecutorial misconduct, a defective indictment, or evidence that is legally insufficient to support the charges.
Jury Trial or Bench Trial
“Going to trial” usually means a jury trial, but it does not have to. A bench trial, where the judge decides guilt or innocence alone, is also an option. In federal court, waiving a jury requires three things: a written waiver, the prosecution’s consent, and the judge’s approval.8Legal Information Institute. Federal Rules of Criminal Procedure Rule 23 – Jury or Nonjury Trial
A bench trial can make sense when the case turns on a complicated legal issue rather than a sympathetic fact pattern, or when pretrial publicity makes an impartial jury hard to find. The tradeoff is unanimity. In a jury trial, twelve people must all agree. In a bench trial, one person decides everything.
What the Trial Itself Looks Like
A jury trial follows a set sequence. It begins with jury selection, where the judge and attorneys question potential jurors to identify bias. Jurors can be removed “for cause” without limit, and each side also gets a set number of peremptory challenges to remove jurors without stating a reason, subject to the rule that peremptory challenges cannot be used to exclude jurors based on race.9Justia US Supreme Court. Batson v. Kentucky, 476 US 79 (1986)
Once the jury is seated, each side gives an opening statement. The prosecution goes first because it bears the burden of proof. It then presents its witnesses and physical evidence, and the defense cross-examines each witness under the Sixth Amendment’s Confrontation Clause.10Congress.gov. Constitution Annotated – Amdt6.5.3.4 Right to Confront Witnesses Face-to-Face11Congress.gov. US Constitution – Fifth Amendment12United States Court of Appeals for the Sixth Circuit. Pattern Criminal Jury Instructions – Chapter 7
Both sides deliver closing arguments. The judge instructs the jury on the law, including the beyond-a-reasonable-doubt standard, and the jury deliberates in private. A conviction or acquittal requires a unanimous verdict.13Congress.gov. Constitution Annotated – Amdt6.4.4.3 Unanimity of the Jury
The Three Possible Outcomes
A trial ends in one of three ways, and two of them can lead to another trial.
Acquittal
A “not guilty” verdict ends the case permanently. The Fifth Amendment’s protection against double jeopardy means the government cannot appeal an acquittal or retry you for the same offense, even if new evidence surfaces later.14Congress.gov. Constitution Annotated – Amdt5.3.6.1 Overview of Re-Prosecution After Acquittal If you are in custody, you are released.
Conviction
A guilty verdict means the jury found that the prosecution proved every element beyond a reasonable doubt. The case moves to the sentencing phase, and the judge sets a hearing date. Depending on the charges and your bail status, you may be taken into custody immediately or allowed to remain free until sentencing.
Hung Jury
When jurors cannot agree and the judge decides further deliberation would be futile, the judge declares a mistrial. A hung jury is not an acquittal, and double jeopardy does not block a retrial.15Congress.gov. Constitution Annotated – Amdt5.3.4 Re-Prosecution After Mistrial After a mistrial, the prosecution decides whether to retry the case, offer a new plea, or dismiss. A hung jury often gives the defense leverage in renewed plea talks, since the prosecution now knows at least some jurors were unconvinced.
Sentencing After a Trial Conviction
Sentencing happens at a separate hearing, usually weeks or months after the verdict. Unlike a plea agreement, where the sentence is often negotiated in advance, a judge sentencing after trial has wide discretion within the statutory range. Federal law directs the judge to impose a sentence “sufficient, but not greater than necessary” after weighing the seriousness of the offense, the defendant’s history, the need for deterrence, and the guidelines range.3Office of the Law Revision Counsel. 18 US Code 3553 – Imposition of a Sentence
Before the hearing, a probation officer prepares a presentence investigation report covering your background, the details of the offense, and any victim impact statements.16Office of the Law Revision Counsel. 18 US Code 3552 – Presentence Reports Both sides can object to inaccuracies and present additional arguments. Prosecutors typically push for a sentence at the higher end of the range and cite aggravating factors. The defense presents mitigating evidence, such as the lack of a prior record, employment history, family responsibilities, or mental health issues.
This is where the trial penalty shows up in practice. A defendant who had pled guilty to the same conduct would likely have received the acceptance-of-responsibility reduction, would have been charged under the negotiated lesser offense, and might have had the prosecutor’s recommendation for leniency. After a trial conviction, none of those advantages exist. The sentence can land anywhere from probation to the statutory maximum.
Appeal Rights Are Preserved
A guilty verdict is not necessarily the end. Defendants have the right to appeal a conviction, but the window is short. In federal court, a notice of appeal must be filed within 14 days of the judgment.17Legal Information Institute. Federal Rules of Appellate Procedure Rule 4 – Appeal as of Right, When Taken Miss it and the right to appeal can be forfeited.
An appeal is not a second trial. The appellate court reviews the trial record for legal errors: improper admission of evidence, incorrect jury instructions, prosecutorial misconduct, ineffective assistance of counsel. It does not re-weigh the evidence or hear new witnesses. If the court finds a significant error, it can reverse the conviction, order a new trial, or direct the lower court to dismiss the charges.
This is one of the real advantages of refusing a plea. Defendants who accept plea deals often waive their appellate rights as part of the agreement. A defendant who goes to trial and loses keeps them.
Can You Still Negotiate Later
Rejecting the first offer does not always close the door. In most jurisdictions, plea negotiations can happen at any stage, including after trial has started and, in some circumstances, after a conviction on appeal. After a hung jury, prosecutors are often willing to deal rather than bear the expense of a second trial.
There is no guarantee, though, that a rejected offer will be extended again, and a second offer is frequently less generous than the first. Prosecutors harden their position after investing resources in trial preparation, and judges are not required to accept the same terms a previous judge considered. The best plea offer usually comes early, before both sides have spent time and money preparing for trial. Turning it down is sometimes the right gamble. It should be made with a clear understanding of everything that follows.