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

These respective realms of authority can and do overlap and at times, conflict. For example, in Brookhart v Janis, the Court held that counsel’s stipulation to a trial without live witnesses in which the prosecution would be held to a lesser burden of proof violated the defendant’s right to enter a not guilty plea,¹⁴ even though defense counsel typically has the authority to waive evidentiary objections and objections to jury instructions on their client’s behalf. And in McCoy v Louisiana, the Court explicitly recognized that criminal defendants have the authority to concede guilt or maintain innocence and also held that this right takes priority over counsel’s authority to make strategic decisions regarding what arguments to make at trial.¹⁵

The decision to concede guilt or maintain innocence belongs to the Defendant

In McCoy, the U.S. Supreme Court held that the Sixth Amendment’s guarantee that criminal defendants are entitled “to have the Assistance of Counsel for his defense,” provides them “the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.”¹⁶ McCoy did not overrule the Court’s earlier ruling in Florida v Nixon, 543 US 175 (2004), which affirmed a defendant’s conviction where defense counsel conceded his client’s guilt at the guilt stage of a capital trial where the defendant had neither objected nor consented to this approach. In Nixon, the Court recognized that criminal defendants have “ ‘the ultimate authority’ to determine ‘whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal,’ ” so for those matters, defense counsel “must both consult with the defendant and obtain consent to the recommended course of action.”¹⁷ However, “[w]hen counsel informs the defendant of the strategy counsel believes to be in the defendant's best interest and the defendant is unresponsive, counsel's strategic choice is not impeded by any blanket rule demanding the defendant's explicit consent.”¹⁸ Even though the defendant in Nixon had not consented to his attorney conceding his guilt, the Court affirmed because counsel had attempted to consult with him about this approach, but the defendant “was generally unresponsive,” and “never verbally approved or protested [counsel’s] proposed strategy.”¹⁹

In contrast, the defendant in McCoy “vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt.”²⁰ Because “it is the defendant's prerogative, not counsel's, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy … or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt,” and the defendant made his prerogative known to his attorney and the trial court, his attorney’s concession of his guilt was structural error warranting automatic reversal.²¹

Klungle clarifies counsel’s duty to consult 

In Klungle, the defendant was charged with misdemeanor trespassing, and resisting and obstructing police, a felony he allegedly committed when officers attempted to arrest him for the misdemeanor. At trial, Mr. Klungle testified that he had not committed trespassing because he was legally entitled to be present in the location he was charged with trespassing in. Then in closing argument, defense counsel conceded that Mr. Klungle was guilty of trespassing but argued he should be acquitted of resisting and obstructing. Mr. Klungle was found guilty of both offenses and appealed. At a Ginther hearing, the defense counsel testified “that while [Mr. Klungle] maintained his innocence, [he] never affirmatively instructed counsel not to concede guilt to the trespass charge,” and that they had a “deteriorating relationship,” and “were virtually not speaking at all” by the time the trial commenced.

The Court of Appeals affirmed Mr. Klungle’s convictions because he “never expressly told counsel that he did not want to concede guilt,” so “trial counsel’s concession was not contrary to [Mr. Klungle’s] assertion of innocence because [he] limited communication with counsel and did not ‘vociferously insist that he did not engage in the charged acts.’ ”²² Although counsel had not consulted with Mr. Klungle about his decision to concede guilt before doing so, the deteriorating attorney-client relationship excused counsel of this obligation.²³

The Michigan Supreme Court unanimously voted to reverse, overruling several of the Court of Appeals’ holdings and both of Mr. Klungle’s convictions. The Court rejected the Court of Appeals holding that for McCoy to apply, the defendant must have “expressly told counsel that he did not want to concede guilt.” “[W]hen they had previously spoken about the objective of the defense for trial—Klungle maintained his innocence.” The distinction the Court of Appeals drew between Klungle’s “generalized claim of innocence” and McCoy’s “claim of factual innocence” was “legally insignificant.”²⁴

The Court also clarified that Nixon’s “holding is limited to situations where defense counsel consults the client about a concession strategy and the client is unresponsive.”²⁵ As such, even if the defendant was “virtually nonresponsive” by the time of trial, counsel “could not disregard Klungle's prior statements and concede guilt without first consulting him.”²⁶

The Court also rejected the prosecution’s argument that defendants must contemporaneously object to preserve a McCoy error because “[w]hen a defendant is represented by counsel, that attorney acts and speaks on the defendant’s behalf.”²⁷ “Requiring a defendant to contemporaneously object on their own behalf to their attorney’s conduct at trial would therefore be impractical and inconsistent with our system of attorney-client representation.”²⁸

* * *

The Michigan Supreme Court’s decision in Klungle should make the rules related to defense counsels’ obligations as to conceding their clients’ guilt more straightforward than they were after the U.S. Supreme Court issued McCoy. Defense counsel may never concede their client’s guilt without first telling their client about their intent to concede guilt and asking for their client’s authorization to do so. If their client rejects this strategy following the consultation, counsel may not concede guilt. If their client agrees or is “nonresponsive,” counsel may concede guilt.

However, McCoy and Klungle leave several important questions unanswered. The most significant is likely what it means to concede guilt. Does conceding an element of the charged offense while maintaining your client’s innocence of that offense violate McCoy? Does requesting to have the jury instructed on a lesser included offense?

What about conceding that your client cannot establish an affirmative defense to the charge?

Honoring your clients’ Sixth Amendment autonomy does not require you to correctly predict how appellate courts will answer these questions. It certainly does not require you to read their closing arguments from a script your client has preapproved. It requires what the Rules of Professional Conduct and the obligation to provide effective assistance have required of defense counsel for decades: “to consult with the defendant on important decisions,”²⁹ and provide them “sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued to the extent the client is willing and able to do so.”³⁰