Can the Jury Hear You Discussing a Plea Deal?

By: John Guidry

Let’s face it: we have too many criminal cases and not enough juries to try them. That is okay because most cases never make it to trial. The legislature knows that the majority of criminal cases are resolved by pleas, so it is important to protect that process.

However, the difference between taking a plea and losing at trial can be devastating. Almost twenty years ago, I saw a client reject a one-month probation offer on a misdemeanor, lose at trial, and receive 42 years in prison from a harsh judge.

We know the jury is never told about the sentencing consequences. But are they allowed to hear about the plea negotiations? Specifically, if you talk to your family about a plea deal on a jail phone, can the prosecutor play that tape for the jury?

Are prosecutors using your jail calls against you?

Don’t give them evidence. Call John today at (407) 423-1117 to discuss your case securely.

The Legal Breakdown: Markel Bass v. State

The question of the day is: To what extent can a jury be told of plea negotiations?

In Markel Bass v. State, 147 So. 3d 87 (Fla. 1st DCA 2014), the court gave a terrifying answer.

• The Call: Mr. Bass was in jail. He called his mom to discuss his options.
  • Bass: “I will… I will take some [prison], but I’m not going to take no 20 years.”
  • Mom: “What you willing to take?”
  • Bass: “I… I would take like 15… like I told [my attorney], I say, if you will give me 15 or 16 years…”
• The Strategy: The prosecutor pulled this recording and played it for the jury as evidence of guilt. After all, an innocent person wouldn’t be “willing to take” 15 years, right?
• The Objection: The defense argued this was inadmissible.
  • Florida Statute 90.410 says evidence of an offer to plead guilty is inadmissible.
  • Florida Rule of Criminal Procedure 3.172(i) says statements made “in connection with” a plea offer are not admissible.

The Ruling: Much to my amazement, the appeals court allowed the recording. The court reasoned that Bass was simply responding to his mother’s query about what he was willing to take. They ruled that these statements were not made “in connection with” a plea offer because they were not made to prosecuting authorities or the court.

Because Bass was talking to his mom, not the prosecutor, the protection didn’t apply. The court essentially ruled that plea offer statements are only protected at the very end of the process, once conveyed to the State.

John’s Takeaways

The Bass court’s reasoning reminds me of the movie Fletch—bumbling through a distinction that makes no practical sense. Why protect an offer made to the prosecutor, but let the jury hear the private family discussions leading up to that offer?

Regardless of whether I agree with the ruling, it is the law. Here is how you must protect yourself in Orange, Seminole, and Volusia County:

• Jail Calls Are Traps: I have said it for years: Stop talking on the jail phone. Prosecutors listen to these calls like it is their favorite podcast. If you discuss plea terms, strategy, or “what you are willing to take,” you are handing them ammunition.
• Mom is Not Your Lawyer: The attorney-client privilege protects conversations with me. It does not protect conversations with your mother, your wife, or your brother. If you tell them, you might as well be telling the jury.
• The “Connection” Loophole: The courts have taken a very narrow view of what “in connection with a plea” means. Unless you are speaking directly to the State or the Judge (or your lawyer is doing it for you), the conversation is likely fair game.
• Don’t Discuss Hypotheticals: Even saying “I’d take 5 years” can be twisted into a confession of guilt. An innocent person theoretically shouldn’t “take” anything. Juries don’t understand the pressure of the system (like the 42-year risk I mentioned earlier); they just hear a guilty man trying to cut a deal.

Keep Your Strategy Private

Plea offers are serious decisions that affect your whole family. But you cannot discuss them over a monitored line. Save those conversations for face-to-face visits with your attorney.

If you are worried that your recorded calls might be used against you, we need to address that in your defense strategy immediately.

Call me at (407) 423-1117. Let’s keep your private strategy private.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.