How Plea Bargains Work in a Criminal Case

Plea bargains resolve the majority of criminal cases. Learn how the bargaining unfolds.

By , Attorney

A plea bargain is an agreement between the prosecutor and defense on an appropriate resolution to a criminal action. This agreement entails both sides giving up something in order to get something in return. In the end, the defendant typically pleads to certain charges in exchange for a recommended sentence, dropped charges, or other benefits.

Types of Plea Bargaining

Prosecutors and defense teams engage in several kinds of plea bargaining. Frequently, the final agreement encompasses a combination of categories.

Charge bargaining. In charge bargaining, the prosecutor agrees to reduce one or more serious charges if the defendant pleads to a lesser charge. For instance, rather than pleading to drug possession with the intent to deliver, the defendant might plead to simple drug possession. Charge bargaining also includes occasions where the prosecutor guarantees dismissal of charges after the defendant fulfills certain conditions.

Count bargaining. Count bargaining involves a defendant pleading to certain counts of the indictment (each count is a separate criminal charge) and the prosecutor agreeing to drop the remaining counts. This category might also include the prosecutor promising not to add additional counts to the original complaint or file a new complaint (based on other activities engaged in by the defendant) in exchange for pleading to some of the already-charged offenses. An example would be a prosecutor agreeing not to charge the defendant with bail jumping for committing a new crime while out on bond, if the defendant pleads guilty to the original charges.

Sentence bargaining. For sentence bargaining, the defendant agrees to plead to certain charges for an agreed-upon sentence. Here, the prosecutor might offer to recommend three years of probation with no jail time in exchange for the defendant pleading to the first two counts of the complaint. Concerned about the possibility of spending time in jail, this defendant decides to accept the offer for probation with a plea to the requested two counts.

Fact bargaining. Here, the prosecutor stipulates (agrees) that certain facts contained in the criminal complaint led to the conviction. If other details had led to the charge, those facts might have required mandatory sentencing. Fact bargaining often occurs in drug possession (amount possessed) or DUI (blood alcohol content) cases.

Process of Plea Bargaining

Plea bargaining can occur at almost any stage of the criminal case.

When Does Plea Bargaining Take Place?

Negotiations transpire at several stages of the process, including before charges even get filed and all the way until the appellate process. The most common time for these discussions is after charges are filed but before trial. Other points in the process include after arrest but before charges are filed, during trial, after a hung jury (vote wasn't unanimous), and during the appeals process.

Some jurisdictions enforce a drop-dead date, which means if the parties don't reach an agreement prior to a date certain (usually close to the trial date), the judge won't accept a deal other than the defendant pleading to the "sheet" (the entire complaint or indictment).

Who Are the Negotiators Involved?

The main participants consist of the prosecutor and the defendant or defendant's attorney. In some jurisdictions, a judge may get involved (see below). Primarily, though, the prosecutor and defense attorney go back and forth with talks. The deliberations might last ten minutes in the halls of the courthouse or could survive through several meetings, phone calls, and correspondence.

The negotiation process often depends on several things, including the complexity of the case, the character of the defendant (including criminal record and rehabilitative needs), and the amount of time both parties have had to investigate their respective sides. The prosecutor also considers the victim's point of view. Ultimately, the decision of whether or not to accept an offer rests with the defendant.

What Is the Judge's Role?

In some jurisdictions, the judge plays an active role in the negotiations. For instance, the judge might meet with the prosecutor and defense attorney to facilitate a resolution. In all jurisdictions, the judge retains the discretion to go along with the agreement or not.

Oftentimes, the plea agreement needs to be in writing and presented to the judge. Judges consider the agreement in light of the nature and gravity of the offense, character of the offender and need for rehabilitation, and protection of the public, among other factors.

At a plea hearing, the judge can:

  • accept or reject the entire agreement
  • defer a decision until after a pre-sentence investigation report so more information is available
  • accept the plea but reject the sentence recommendation, or
  • offer suggestions as to an amended agreement that would be acceptable.

If the judge rejects the plea agreement, the judge may allow the defendant to withdraw the guilty plea.

Should I Take the Plea Bargain?

Although plea bargaining provides many advantages, criminal defendants should consider the disadvantages, as well, to make a fully informed decision on whether to plead or risk trial.

Advantages of Plea Bargaining

Because trials are unpredictable, accepting a plea offer gives the defendant more control over the outcome of the case. Defendants save money by not going to trial and will be released from jail sooner, as the case doesn't drag on. Defendants can also avoid unwanted publicity, incur less serious criminal records (helping future employment opportunities), and likely receive lighter sentences.

Disadvantages of Plea Bargaining

Plea bargaining also comes with drawbacks, including that the defendant must plead guilty to a crime (perhaps one they didn't commit) for the benefit of the bargain. The plea negotiations can also reveal some of the defense trial strategies to the prosecutor. If the prosecutor imposes a deadline, the defense might feel pressured to take the offer.

Talk to a Lawyer

Successful plea bargaining involves having good working relationships with opposing counsel, judges, and clients. Additionally, it means knowing the law, being familiar with the local court rules, and understanding the risks of trial. If you face criminal charges, contact a criminal defense attorney as soon as possible. Solid negotiating skills can affect the outcome of your case.

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