Plea Bargains


Plea bargains are voluntary agreements, made as a result of negotiations between prosecutors and defendants, that avoid a trial in exchange for a certain sentence. At least 90 percent of criminal cases in the United States are disposed of through plea bargaining. The prosecutor avoids the time and expense of a trial and the defendant is getting something less than the worst punishment a jury could give. Both sides avoid the uncertainty of a jury verdict.

The court must approve plea bargains. Because judges often work with the same prosecutors in their court on a daily basis, it is not common for a judge to refuse a plea bargain.

A plea bargain requires the defendant to plead guilty or nolo contendere, meaning "no contest." Plea bargains can result in a variety of dispositions-a lighter sentence, dismissal of additional charges against the defendant or reduction of the charge from a felony to misdemeanor.

Duties of Defense Counsel

The Sixth Amendment to the U.S. Constitution guarantees every defendant the right to an attorney and adequate representation. Under this standard, your attorney in a criminal case must always communicate and discuss with you any plea bargain offers from the prosecution. If you are not kept informed of potential pleas, go to trial and are then convicted, it is possible that you have been "prejudiced" or treated unfairly and deserve a new trial because your attorney did not adequately represent you.

To determine if your representation was inadequate, courts use the Strickland test. In the Strickland case, the U.S. Supreme Court required the defendant to show two things:

1. The attorney's errors were so serious he was not functioning as effective counsel; and

2. There is more than a reasonable probability the outcome would have been different if the attorney had not made errors.

In plea bargain situations, this requires a showing that the defendant would have, in fact, pleaded guilty if he had known about the plea bargain offer and the court would have accepted the plea.

Duties of the Court

The judge has the duty to have you sworn in and ask you if you understand the consequences of your plea bargain. Under the Federal Rules of Criminal Procedure, and in most state courts, you will be addressed personally by the judge and asked if you understand:

  • that you can be prosecuted for perjury if you give false statements under oath;
  • your right to plead "not guilty";
  • your right to a jury trial;
  • your right to be represented by counsel-and if necessary have the court appoint counsel-at trial and at every other stage of the proceeding;
  • your right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
  • that you are waiving these trial rights if the court accepts a plea of "guilty" or nolo contendere ("no contest");
  • the charges to which you are pleading;
  • the possible maximum penalty, including imprisonment, fine and term of supervised release;
  • any existence of mandatory minimum penalty; and
  • the court's authority to order restitution (payment to the victim).

You should know that the judge does not automatically have to honor the plea bargain offered by the prosecutor.

Factors in Plea Bargains

The primary factor in any plea bargaining negotiation is the strength of the prosecution's case. Is the case against the defendant a strong one? Is there sufficient evidence? Are witnesses available? Did the police perform legally? For a defendant, the question of how a jury would vote and what makeup of jurors he would get is a prime consideration. Another important factor is the experience of the criminal defense lawyer and her ability to obtain acquittals. Former prosecutors that become defense attorneys are a big bargaining chip for a defendant, as they know the ins and outs of criminal trials from the government's point of view and often know the prosecutor.

The victim is also a factor in plea bargains. If the victim is traumatized and unwilling to testify, the prosecution's case is not as strong. Sometimes the victim simply does not want a trial and acquiesces to a plea bargain with the defendant. On the other hand, a sympathetic victim will be difficult for the defense to counter, strengthening the prosecution's case and chances for a conviction. Additionally, public outcry is important. District attorneys are elected officials, and their unwillingness to take a high-profile case to trial by plea bargaining it away can affect their job security.

Does the prosecutor have to offer a plea bargain?

No. A defendant is not entitled to a plea bargain.

The prosecutor "threatened" me with a trial if I did not plead guilty in exchange for a lighter sentence. Is this coercion?

No. Although your plea must be entered voluntarily, the prosecutor is not threatening you. She is merely informing you of what will happen if a plea bargain agreement cannot be agreed upon.

My attorney wants to go to trial but I would like to try to plea bargain. Does he have to tell me if the prosecution offers a deal?

Yes. If your attorney does not communicate a plea offer to you, your constitutional right to adequate representation by an attorney has been violated. You have reason to complain of "ineffective assistance of counsel" if you are convicted and later learn that a plea bargain was possible.

Sidebar: Courts require criminal defense attorneys to inform the defendant client of any plea offer. Furthermore, an attorney for the defendant has a constitutional duty to give his client professional advice concerning the plea so that the defendant clearly understands the consequences of his decision.

I have been convicted of a crime that I would have pleaded guilty to if I had had a better understanding of the consequences. Is there anything I can do to overturn this conviction?

Yes. If you were ineffectively represented and can show that you were prejudiced by your attorney's poor performance in explaining the plea bargain, the court may dismiss your conviction and order a new trial. The judge might also impose the sentence that the prosecution offered if you had pleaded guilty.

I have agreed to plead guilty to a charge and the prosecution has agreed to some concessions. How do I know the prosecution will keep their end of the bargain?

The terms of the plea agreement will be read to the judge in open court, putting the plea bargain "on the record." You will have the chance to listen and make sure it is accurate before you plead guilty.

Courts require that the prosecution keep its promises to the defendant or the plea bargain agreement will be invalidated. However, the broken promise must be a material breach, such as promising not to recommend a certain sentence to the judge and then doing so in open court.

TIP: Any items of property you want to recover should be identified in the plea agreement, with a time and place of return. For example, if documents were taken from your home during a search, they should be listed in the plea agreement and read by the judge. If you will not be able to receive the property because you are serving time, then designate someone to go to the prosecutor's office and pick up the items.

I have agreed to plead guilty in exchange for a lighter sentence and the agreement is in writing, signed by the prosecutor and myself. Does the judge have to abide by the terms of the plea bargain agreement?

No. Although you have made an agreement in writing, the court is under no duty to accept it. The judge, after accepting your guilty plea, has the discretion to impose any sentence within the guidelines of punishment for your crime.

The judge may be required to set forth her reasons for rejecting the plea agreement. In federal court, the judge is required to advise the defendant personally that she is rejecting the plea agreement and that the defendant is permitted to withdraw his plea.

Does pleading guilty mean I have been convicted of that crime?

Yes. Once you have pleaded guilty and been sentenced, the matter of your guilt or innocence has been concluded. A guilty plea is not merely a confession; it is the basis for a conviction.

After pleading guilty, the judge sentenced me to a longer time in jail than I expected. Can I withdraw my plea?

No, not if this is your only grounds for withdrawal and if you were informed by the court that there was a range of possible sentences.

TIP: Courts use presentencing reports to help determine the punishment that will be imposed. After a plea is made in court, judges will often defer sentencing until the report is made. If you find out that the report recommends a greater punishment than you expected, you will not be able to withdraw your plea, although the court has not yet imposed a sentence. If you can, delay making your plea until the presentencing report is completed and you have seen it.

Can a plea of guilty made pursuant to a plea agreement be withdrawn?

Yes, if you do so before the court accepts it or a sentence is imposed.

After the court sentences you, based on your guilty plea, you will have to prove that facts exist that show a fair and just reason for the withdrawal of the plea. If such facts exist, the court will hold an evidentiary hearing. If a fair and just reason for your plea withdrawal is proved, you will be allowed to withdraw it. For example, if new evidence has been found tending to show your innocence, you may be allowed to withdraw your guilty plea and plead not guilty.

You do not have the right to a hearing on the matter of withdrawing a guilty plea just by bringing it up to the court. Furthermore, you do not have an inherent right to withdraw your guilty plea, although federal and state laws give you the right anytime before acceptance or sentencing.

What factors show that there is a fair and just reason for withdrawing from my agreement to plea guilty?

Primarily, the court determines if your prior plea was voluntary, intelligent and made with knowledge of the consequences. If it was not, such as the failure of your attorney to properly explain the consequences, the court may permit you to withdraw your plea.

Permitting a guilty plea to be withdrawn is solely in the judge's discretion. In addition to determining whether your plea was knowing and voluntary, expect the court to inquire whether:

  • you are now asserting your innocence;
  • you have delayed in filing the motion;
  • the court will be inconvenienced;
  • judicial resources will be wasted;
  • the prosecution will be prejudiced; and
  • your representation by an attorney was adequate.

I made a guilty plea and the judge is taking the case "under advisement." Since I have not been sentenced, am I still entitled to withdraw my plea?

No. Taking the case "under advisement" is tantamount to accepting your plea and you cannot withdraw it unless you have reason.

My lawyer told me that my photo would not be published if I pleaded guilty, and it is now on the Internet. Am I entitled to withdraw my plea?

Yes. In Florida, a court ruled that an attorney's mistaken assurances that his client's photo would not be published were "measurably deficient" and the defendant was entitled to withdraw his plea after sentencing.

My sister suffers from several forms of mental illness, yet pleaded guilty to a crime. Can the plea be withdrawn on the grounds she is incompetent?

No. A diagnosis of mental illness does not make her incompetent to enter a plea. A defendant is presumed to be competent and her guilty plea cannot be withdrawn based on the existence of her mental condition alone. Your sister's competency should have been raised prior to her plea so that a hearing could have been held to determine whether she understood the proceedings.

Although the court may impose a prison sentence when commitment to a mental hospital is expected, the guilty plea cannot be withdrawn. Typically, the judge has informed the defendant of the range of punishments, including a prison sentence, before accepting the guilty plea.

The judge permitted me to withdraw my guilty plea. What happens next?

You may proceed to trial by pleading "not guilty" or you can negotiate another plea bargain with the prosecution.

After I have pleaded guilty, can I be charged with a different offense?

Not if the new charge arises from the original criminal episode. In fact, once the court accepts your guilty plea, the rule against double jeopardy, or trying you twice for the same crime, goes into immediate effect.

Sidebar: Some state constitutions and laws do allow additional charges arising out of the same episode up until actual sentencing. Others allow the prosecutor to charge the defendant with additional crimes until some of the sentence is actually served.

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