At the CDRC, we regularly receive questions from defense attorneys and incarcerated individuals around the state. In this column, we reprint our answers to common or interesting questions we receive (with any case identifying details omitted or modified) that might be helpful to a wider audience.

Earlier this month in People v Klungle, __ Mich __ (2026) (Docket No. 168010), the Supreme Court vacated the defendant’s convictions after it concluded that his right to maintain innocence had been infringed by his trial attorney’s argument that he was guilty of the charged misdemeanor in an unsuccessful attempt to secure an acquittal on the other charge, which was a felony. In doing so, the Court reversed a published Court of Appeals opinion that had held the defendant’s rights had not been violated because the defendant never explicitly told his attorney not to tell the jury he was guilty. This decision has caused many defense attorneys to wonder whether they or their clients have final say over the numerous decisions made before, during, and after the trial.

The Supreme Court’s decision overruling the Court of Appeals in Klungle did not announce or modify any preexisting rules pertaining to which matters the defendant has the authority to decide and which matters the defendant’s attorney has the authority to decide. Both courts agreed that the defendant typically has the right and authority to decide whether to concede guilt or maintain innocence. They disagreed about whether defense attorneys may be excused from their obligation to consult with their client before conceding their client’s guilt, and how clearly a defendant must assert his innocence to prevent his counsel from conceding his guilt to the jury.

Some decisions are exclusively the province of defense counsel

Defense attorneys generally have “full authority to manage the conduct of the trial,”1 including whether or not to:

• forgo cross-examination of a witness;2
• call certain witnesses (other than the defendant);3
• stipulate to the admission of evidence;4
• waive the defendant’s right to a speedy trial;5 
• pursue specific arguments at trial;6 and
• pursue non-frivolous arguments on appeal.7

In contrast, criminal defendants possess “the ultimate authority to make certain fundamental decisions regarding the case,”8 including whether or not to:

• enter a guilty plea;9 

• waive the right to a jury;10 

• waive the right to counsel;11 

• testify on his or her own behalf;12 and

• maintain innocence or concede guilt to any of the charges.13

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