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Plea Bargaining: Areas of Negotiation

Plea bargaining actually involves three areas of negotiation:

  • Charge Bargaining: This is a common and widely known form of plea. It involves a negotiation of the specific charges (counts) or crimes that the defendant will face at trial. Usually, in return for a plea of "guilty" to a lesser charge, a prosecutor will dismiss the higher or other charge(s) or counts. For example, in return for dismissing charges for first-degree murder, a prosecutor may accept a "guilty" plea for manslaughter (subject to court approval).
  • Sentence Bargaining: Sentence bargaining involves the agreement to a plea of guilty (for the stated charge rather than a reduced charge) in return for a lighter sentence. It saves the prosecution the necessity of going through trial and proving its case. It provides the defendant with an opportunity for a lighter sentence.
  • Fact Bargaining: The least used negotiation involves an admission to certain facts ("stipulating" to the truth and existence of provable facts, thereby eliminating the need for the prosecutor to have to prove them) in return for an agreement not to introduce certain other facts into evidence.

The validity of a plea bargain is dependent upon three essential components:

  1. Knowing waiver of rights;
  2. Voluntary waiver; and
  3. Factual basis to support the charges to which the defendant is pleading guilty.

Plea bargaining generally occurs on the telephone or in the prosecutor's office at the courtroom. Judges are not involved except in very rare circumstances. Plea bargains that are accepted by the judge are then placed "on the record" in open court. The defendant must be present.

One important point is a prosecuting attorney has no authority to force a court to accept a plea agreement entered into by the parties. Prosecutors may only "recommend" to the court the acceptance of a plea arrangement. The court will usually take proofs to ensure that the above three components are satisfied and will then generally accept the recommendation of the prosecution.

Moreover, plea bargaining is not as simple as it may first appear. In effectively negotiating a criminal plea arrangement, the attorney must have the technical knowledge of every "element" of a crime or charge, an understanding of the actual or potential evidence that exists or could be developed, a technical knowledge of "lesser included offenses" versus separate counts or crimes, and a reasonable understanding of sentencing guidelines.

Careful Consideration Is Needed

The decision to accept or reject a charge, sentence of fact plea bargain should be made only after careful and thorough consultation with your defense attorney as there are many ramifications that aren't always obvious at first glance. For example, pleading guilty to a lesser charge, depending on the circumstances and whether your state has a Three Strikes Law, could still result in a long-term prison sentence. Also, depending on your case and the charges against you, a sentence-based plea bargain may lead to less time in prison, but could involve registration as a sex offender for the rest of your life, which you could avoid if you're found not guilty at trial.

Finally, fact plea bargains could lock you in to admitting certain seemingly irrelevant facts at the start of your case, which may become more relevant as the evidence in the case develops. Because of these potential consequences, and because you and your attorney have the ability to negotiate the terms of a plea bargain, don't feel as though you need to accept the prosecution's first offer.

Get a Free Legal Evaluation of Your Plea Bargain Questions

A competent local attorney can negotiate the best plea deal on your behalf. Their knowledge of the prosecutorial team and judicial staff, their legal expertise, and their experience give them a critical edge in finding the best deal possible. Have a free case review with qualified counsel to discuss how they can work with you to resolve your case.

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