Monday, October 10, 2011

Plea Bargaining

Plea deal, plea bargain, cop a plea, cop out - just a few phrases to describe a complex legal process where a defendant chooses to plead guilty to a crime. There are various methods and reasons for a plea and I'll discuss some of them to shed light on it. We'll be discussing felonies here, so if you are interested in misdemeanor plea bargaining make a comment and we can discuss.

In New York, there are two times a defendant can plead guilty - pre-indictment or post-indictment and both have their own special set of rules. Check out a prior post for more information on the legal track a case follows. I should note that there is no right to a reduced plea bargain for any person. A defendant can always plead guilty to the highest charge, after a felony hearing, but a reduced plea is solely at the discretion of the District Attorney's Office. It is an enormous responsibility and, as you will read, it is not something considered lightly.

Pre-indictment plea bargaining is generally more beneficial to a defendant. There are less rules and more flexibility over what charge a defendant can plead to. In addition, the most advantageous plea bargains are offered prior to securing an indictment.

In post-indictment situations, many prosecutor's offices do not allow a defendant to plead guilty to anything but the highest charge. There are two main reasons for this:

1) Ensuring a case is sufficiently investigated so that when it is presented to the grand jury, only the sustainable charges are submitted for the grand jury's consideration (not necessarily the charges filed by the police). We do our best not to charge a defendant with a higher level crime than we can prove in an effort to get a plea. That is gamesmanship, not justice.

2) If there is no plea deal offered following an indictment, prosecutors and defense attorneys are more likely to work out a deal before all of the work required to present a case to the grand jury and prepare a case for trial begins. It is in the defendant's best interest to resolve the case prior to an indictment because he/she knows they will not be getting any benefit following a grand jury indictment.

Also in post-indictment situations, the penal law and criminal procedure law provide restrictions on what crimes a defendant can plead guilty to depending on what the highest charge is. In most cases, these restrictions don't exist pre-indictment.

So what factors do we as prosecutors consider in offering a reduced plea? Some considerations (not in order of importance):

1) Nature of the charge - it makes a difference if the charge is a homicide or if it is criminal mischief (example - throwing a rock through a window).

2) Whether the case is pre- or post-indictment (see above).

3) Defendant's criminal history, if any - Depending on the history, a sentence can be increased for previous convictions or some programs (like rehab and probation) can be taken off the table completely.

4) Victim's request - While there is no law in New York requiring a victim to sign off on a reduced plea, we do take their views into consideration.

5) Defendant's level of cooperation - it does matter if the defendant agrees to cooperate and testify against his co-defendants or cooperate in another case.

6) What we can prove - we offer a reduced plea based on the charges we can prove at trial, not the charges the police filed when the defendant was arrested.

7) Possible sentences - each level of felony contains different sentences. We analyze the possible sentences the judge can impose when deciding what reduced charge to offer.

There are countless considerations we analyze when deciding to offer a plea bargain. What do you think is the most important consideration? Should all defendants be offered a plea bargain regardless of any consideration? What are some of the downfalls of this system? Check back later this week for some answers to the last question.


  1. I feel like the nature of the crime and the criminal history are the most important--and I say that as the family member of 2 murder victims. My question is this: can a defendant "make a deal" once trial has started? Or can he just decide to plead guilty once a trial has commenced? I've always wondered that. You know us laypeople see all kinds of inaccurate stuff on TV. :)

  2. A defendant can always plead guilty to all of the charges at anytime, up to and including while a jury is deliberating. This often happens as the potential jurors are walking into the courtroom to start the trial. The defendant realizes that we are truly prepared to go forward and will plea to avoid the trial. If a defendant pleads guilty to all the charges, we cannot stop it no matter when it is.

    If the district attorney's office chooses to, we can offer the defendant a plea deal while trial is on-going. This usually doesn't happen though. In my office, the trial commences once all plea negotiations have fallen through.

  3. Thanks for answering those questions. Very informative!

  4. If the prosecution offers no plea. Does that mean they think they have a slam dunk case or no case at all ?

    1. In my experience, no case is a slam dunk. I have won cases I thought I'd lose and lost cases I thought I'd win. I can't opine on this because plea policies vary greatly by the office.

  5. Can you be indicted after a plea sentence