Is there a Trial Tax in Indiana?

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Almost every client we have had at our firm asks whether there is a “trial tax” if they decide to take their case to trial and lose. Put more simply, they want to know if their punishment will be harsher if they lose after trial. While the obvious answer is, “there shouldn’t be a trial tax and constitutionally there cannot be,” the truth isn’t quite so straight forward. Knowing this can drastically change a defendant’s choice to plead guilty rather than risk a harsher penalty — but let’s explain the analysis.

We have previously written a blog about sentencing and the factors that judges take into consideration when determining an appropriate sentence for an individual defendant. In so doing, the judge will consider statutory aggravators and mitigators. To read the blog on the topic, click here.

This is a process that takes place whether or not someone is convicted after trial or as part of an open felony plea agreement. However, the factors can slightly change if a defendant goes to trial and loses. How and why? Simply put, while a defendant cannot be hit harder with a sentence simply for exercising their constitutional right to trial, if they do in fact lose, judges will not be able to find a mitigator of accepting responsibility and saving the state and courts time and resources — including bringing in and paying jurors for however long the trial might last. While these may not be specifically enumerated mitigators by statute, judges give significant weight to a defendant accepting responsibility.

To read an article on that issue, read here:

Another issue that comes into play is that prosecutors tend to offer nicer deals before trial as they are saved the time and resources of preparing for and executing the trial itself. Because of that benefit they tend to be more lenient up front. Once a defendant chooses to go to trial, almost every prosecutor will ask for a harsher penalty post-trial. Because they ask for a harsher penalty, judges will tend to lean heavier on the sentencing gauge as well. Unfortunately, it is like buying a car. The more the prosecutor asks for (the higher the price of the car), and assuming the judge will find a middle ground somewhere between the state’s recommendation and the defenses, that middle area shifts higher as the prosecutor asks for more time. In the car example, the settled cost rises as the parties get further apart. Simple common sense, sadly.

So, is there technically a “trial tax” per se? No. Is it called that? No. But will penalties usually be harsher after a loss at trial, yes. That may sound like a trial tax, and we can surely argue whether it technically exists, but a judge should not be thinking of it as such.

In the end, a choice to go to trial is one of the most fundamental rights a person has in this country. Fear should never be a driving factor in deciding to exercise that right. This blog should not be perceived as pushing anyone towards pleading guilty, but rather it provides an overview of what can happen if you do exercise that right and lose. The choice to go to trial should always be weighed against the risks of losing and the strength or weakness of the state’s case. At Banks & Brower we have tons of trial experience and part of that experience requires that we walk through all the options with our clients. In the end, it is the client’s choice as to what path to take. As long as all the parties know the risk and go in with eyes wide open, then informed decisions can be made and lead the way.

If you or a loved one are facing a criminal offense, give the experienced litigators at Banks & Brower a call today. We are available 24/7/365. or at 317.870.0019.