HOW MOST CRIMINAL CASES ARE REALLY RESOLVED

Watching television, you would think the logical conclusion to most criminal cases is the glamorous and high-stakes jury trial. Sit in any criminal court in this country and you will quickly find that this is not the case. Well over 90% of criminal cases are resolved by way of plea bargain. That is, a mutually agreeable negotiated end to the case generally involving the defendant’s admission of some charges in exchange for a specified consequence.

The reason for this is simple. Jury trials are tremendously costly in terms of resources. There are simply not enough lawyers, judges, jurors or courtrooms for every case to go to trial. From the prosecution’s perspective, they have to make some concessions to ensure that they are not overwhelmed by trials. From the defendant’s perspective, trials are inherently unpredictable. As I advise all of my clients, some cases must be tried, but there is simply no way to predict the outcome of a trial. Jurors are unpredictable, unexpected things happen during the presentation of evidence, and (most importantly for many) when you go to trial, you give up control of the consequences if you are convicted.

Unlike in a plea agreement, in which the defense negotiates and must ultimately agree to any deal, if you are convicted by a jury, the judge will then decide the sentence. Even more unfortunately, many judges often impose what is known as a “trial tax.” What this means is that even if the judge who hears the trial made an offer to resolve the case prior to trial, they will often hand down a harsher sentence after trial. Judges justify this by saying that pre-trial offers are premised on the defendant’s acceptance and admission of guilt, but in reality the reason for the “trial tax” is the same as the prosecutor’s, judges know not every case can trial and they seek to create a disincentive to defendant’s exercising their Constitutional right to a jury trial.

So, like it or not, plea bargains are how most cases resolve. So how do they happen?

In all but the most serious cases, the prosecutor will make an offer. This offer will include both a proposed punishment as well as the charges to which the defendant would be required to plead guilty to. Another option is to seek an offer from the judge, known as “pleading to the court.” The downside of pleading to the court is that the court, with some exceptions, generally cannot change or dismiss the charges the prosecutor has filed so when you plead to the court, it usually means “pleading to the sheet,” meaning pleading guilty as charged to everything charged. Sometimes, this makes sense, when the punishment is the biggest concern. Sometimes, for example when you are trying to get the prosecutor to change a charged strike to a non-strike offense, you are forced to negotiate with the prosecutor rather than the court.

If you have been reading this series, you already know that having a good attorney helps you at every stage of the proceedings. This may be most true during plea negotiations. A good defense attorney has credibility with the prosecutor and court which often means the ability to negotiate down from the prosecutor’s opening offer. Additionally, a good defense attorney will work to present the prosecutor or court with reasons to depart downward from their initial offer. Sometimes this means showing a prosecutor weaknesses in the case or in certain counts. Sometimes it means offering the prosecutor what we refer to as mitigation, information that helps contextualize the circumstances of the crime and the client. Sometimes it means offering proactive and creative alternatives to incarceration such as drug treatment or education. All of these can create leverage or incentive for the prosecutor or judge to make a more favorable offer.

The most important thing to consider when going through the negotiation process is you must way the costs and benefits of any offer against the unknowns of a trial. A good criminal defense attorney can help you navigate this process, secure the best possible offer, and evaluate that offer against the potential range of outcomes if you choose to reject the offer and force the government to trial.