Plea Bargain a/k/a Let’s Make a Deal?

A  plea bargain is the most common way a criminal case is resolved and is, simply put, a form of risk management. A plea bargain is usually* an agreement to plead guilty, or nolo contendre, or under the Alford doctrine, to a crime in exchange for the certainty of the offered sentence.

*Of course some pleas do not involve plea guilty to anything, others take the form of a “nolle”.

As a criminal defense attorney, I gather and analyze the data, anticipate, as best as I am able, which information will be allowed in as evidence at trial, and consult with my client about what I see. In a criminal proceeding, often those charged have confessed, or left a trail of evidence so strong that suggests that they could have saved everyone time and money by simply confessing. Lest you confuse this clear-eyed assessment with a desire to see more confessing I direct you to my earlier post – Do Not Ever Speak to the Police.

The state’s attorney (prosecutor) has done the same thing I have done with the evidence. They are considering the same information, the same data, except from their perspective. The parties generally agree on the evidence, generally agree on the charges, and generally agree on the weaknesses in a case. So what are we fighting over? It could be a number of things, whether the charges should be dropped, the amount of probation, the amount of jail time, whether the plea should be to a misdemeanor or a felony, etc.

Plea Bargain or Should I go for Door No. 2?

The client’s decision comes down to this: does the risk of trial and the possibility of 1) an acquittal or 2) less jail time than currently offered, outweigh the certain outcome offered by the state. It is important to note that the decision for the length of a jail sentence is in the hands of the judge not the jury. Additionally, it is widely held belief that going to trial risks a trial tax, the imposition of a harsher sentence for exercising your right to a trial. Judges, of course deny doing so, adamant that they would not punish a person for exercising their right to have a trial, but sometimes. . . . Moreover, at trial you place your fate in the hands of citizens, who have their own flaws, prejudices, and shortcomings and because of this a good criminal defense attorney will see if there is a way to reduce the risk.

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