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Successfully Withdrawing a Guilty Plea

Here are some of the circumstances under which a criminal defendant may withdraw a plea.

The following is a transcript of " The Legal Lad's Quick and Dirty Tips for a More Lawful Life," a podcast from The audio program is available via RSS feed here and at's podcast home page.

Hello, and welcome to

Legal Lad's Quick and Dirty Tips for a More Lawful Life


But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

On June 7, 2007, Idaho Senator Larry Craig was arrested on suspicion of lewd conduct arising from an incident where Senator Craig allegedly attempted to engage in sexual activity with an undercover police officer in a Minneapolis airport bathroom. Senator Craig pleaded guilty to that offense, but recently filed a motion to withdraw that plea. Today I will discuss the circumstances under which a criminal defendant may withdraw a plea.

First, it is necessary to understand what pleading in a criminal case is. The Constitution guarantees to criminal defendants the right to due process and a trial. The due process right generally requires the government to inform the accused of the charges against him, and then the defendant has the right to a trial at which the government bears the burden to prove, beyond a reasonable doubt, that the defendant committed the crime.

However, a criminal defendant may waive his right to a jury trial, and simply plead guilty to the charge. When a defendant pleads guilty, he effectively accepts the truth of the charges by allowing the government to forego having to prove the charges.

But, a defendant may later withdraw his own plea. While there is no absolute right to withdraw a plea, courts will generally grant a motion to withdraw a plea where it would be manifestly unjust to allow the plea to stand. Various courts, both federal and state, have recognized circumstances that give rise to a manifest injustice.

First, a court will grant a motion to withdraw a plea where the defendant did not voluntarily enter into the plea. For example, a court allowed a defendant to withdraw where the arresting officers had used mace on him while arresting him, and intimated that they would use the mace again if the defendant did not cooperate with them.

Also, courts have allowed a withdrawal where the defendant was led to believe by police officers that pleading not guilty would result in a much harsher sentence, and that he would never be allowed to see his children again.

Second, a court will allow withdrawal where the defendant did not understand the charges against him. This often occurs where the defendant does not have an attorney present when he enters his guilty plea. Typically, a court will allow the withdrawal only where the police or the court did not explain the factual basis of the charges. But, courts will not generally allow withdrawal simply where the defendant does not understand the peripheral effects of a guilty plea.

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For example, courts have consistently denied withdrawal where a defendant argues that he did not understand that pleading guilty to a felony has immigration or occupational effects.

Third, courts have permitted withdrawal where the defendant was not informed of his constitutional rights such as the right to a jury trial or the right to counsel. If the criminal defendant is not informed that he can challenge the charges against him in open court, and with an attorney working on his behalf, then a court will usually withdraw his plea.

Further, if the defendant was represented by counsel at his plea, but the attorney is later shown to have rendered incompetent service, then the defendant may ordinarily withdraw.

Last, a court will withdraw a plea where there does not exist any factual basis for the plea. For example, a defendant was charged with battery and theft of a car. But, the statement from the victim only indicated that the car was stolen, but not that the defendant had touched or harmed her while stealing the car.

The defendant pleaded guilty to both stealing the car and battery. The court allowed the defendant to withdraw his guilty plea to the battery charge because there was no evidence that would provide the factual basis for that charge.

Senator Craig has challenged his plea on several grounds. He argues that his plea was not voluntary because he was under severe anxiety at the incident becoming public, and that he had a plane to catch. He argues that the officer promised him that the incident would remain private if he pleaded guilty, and so his guilty plea was made under the extreme stress of the situation.

Craig also argues that there are insufficient facts to support the conviction. He argues that the officer's version of the events in the bathroom stall cannot support a conviction under the Minnesota disorderly conduct statute.

(To see the full text of Craig's motion,

click here.)

Whether the judge will accept these arguments remains to be seen.

Michael Flynn writes and records the

Legal Lad articles and pocdasts. A graduate of Tufts University and the University of California, Hastings College of the Law, he currently works as a research attorney for a California trial court.

Disclaimer: Please note that the legal information featured in Legal Lad articles and podcasts is presented for educational purposes only and is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, Michael Flynn's name is only being provided for authorship purposes, and not to advertise any legal services. To request a topic or share a tip, send an email to or call 206-202-4LAW.