Plea Bargaining

The prosecution, defense, and to a lesser extent the court, typically engage in negotiations to determine if the matter can be resolved by a negotiated plea (plea bargain). Plea bargaining is not required in every case, however the sheer weight of case load makes this process indispensable in the system. The process of plea bargaining is a necessary evil in the criminal justice system. The simple truth is, if all cases went to trial, the criminal justice system would grind to a halt.

The plea bargain must include input from the prosecution, defense and the court. The results of a plea bargain, regardless of the desires of the prosecution and defense, MUST be approved by the judge. A plea bargain is NEVER binding on the court. The plea bargaining process is controlled by the law, local custom, prosecution policy, strengths or weakness of the case, and judicial approval.

Plea Bargaining Principles: The following principles have been identified by me, based on my more than 40 years’ experience in the criminal justice system. Some of these principles are required by statute (plea bargain limitations) while the others, such as local policy, are identified by me. This list is not meant to be exhaustive and other practitioners may disagree with some or all, or add others. The experienced attorney will be familiar with these customs or policies and will effectively represent their client.

• Preliminary hearings may uncover strengths and weaknesses in the case which may be used by the defense in attempting to negotiate a favorable resolution on behalf of the client. An experienced attorney must try to uncover prosecution weaknesses without, at the same time, identifying defense weaknesses.

• Local customs: The defense attorney must be familiar with local custom. Some areas have developed policies as to the extent of plea bargains available in a particular type of offense. (i.e., if the matter has received extensive media attention and involves conduct perceived as particularly offensive to the local citizenry, a favorable plea bargain may not be available).

• Legal restrictions on plea bargains: Statutes have evolved that expressly limit discretion of plea bargains in some matters. Most notably, the prosecution and the court are specifically limited in plea bargaining a DWI outside of the alcohol category. A plea to DWAI is still available in many cases, subject to prosecution and judicial customs.
  
  The prosecution is not permitted to accept a plea to the traffic infraction of DWAI if the original charge is Aggravated DWI (viol 1192-2a V&T law – BAC .18 or higher)., A reduction to an otherwise impermissible plea bargain may still be approved if the prosecution is willing to place on the record his/her reasons. Very few prosecutors are willing to do this, however an experienced attorney can explore and point out weaknesses which may make the prosecution agree to place the reason on the record.

• Prosecution, police and judicial discretion: Notwithstanding the legal restrictions, prosecutors are free to establish policies which deviate from the legal restrictions as long as the prosecution policy is not less restrictive than the legal restriction. Deviation from the legal restriction with a less restrictive disposition may be allowed on a case by case basis but can NOT be a policy (i.e.) The prosecutor in some counties has adopted a policy not to agree to a plea bargain in a DWI matter with a BAC .12 or .13 or .14 even though the statute only restricts pleading out of a misdemeanor DWI when the BAC is .18 or higher. The prosecutor is entirely free to adopt such a policy.
  
  The court, on the other hand, can NOT adopt a plea bargain policy, but the court can reject a proposed plea bargain based on judicial discretion if the court believes the proposed disposition does not do justice, as long as the refusal is on a case by case basis and NOT a policy.

Plea Negotiations – Felony in LLC: The local criminal court may NOT plea bargain a felony. This authority is reserved for a Superior Court (usually a County Court), however it is not uncommon for a prosecutor to recommend a reduction of a low level felony to a misdemeanor to allow it to be adjudicated in LCC. This is proper and usually does not require any input from the Superior Court unless the accused has been indicted by a Grand Jury. The process requires the prosecutor to withdraw the felony complaint and submit a Prosecutor’s Information charging a misdemeanor. The process proceeds as a misdemeanor from that point on.