Although some cases go to trial and some cases are dropped, most are resolved by way of a negotiated plea. This is also called plea bargaining. There are advantages and disadvantages to negotiating. Anytime a case proceeds to trial, there is some degree of uncertainty. However strong the defense, there is risk in putting your future in the hands of a jury. If a plea is negotiated, it will dramatically reduce that uncertainty. A negotiated plea may result in a reduced charge, a reduced sentence and reduced exposure to risk. A skillful attorney may be able to negotiate a “withheld adjudication” resulting in no formal felony conviction. Since a felony conviction affects many of our civil rights, a negotiated plea or a withheld adjudication may be a wise choice. A negotiated plea may also result in a reduced sentence including, sometimes, no jail time at all.
Negotiating Probation Or House Arrest
In many instances, a negotiated plea involves a period of probation or house arrest. A negotiated plea may also result in reduced fines and restitution, or no fine at all.
It is a very difficult decision whether or not to go to trial or accept a plea bargain. If the case proceeds to trial and the verdict is not guilty, the defendant is found not guilty and set free. If, on the other hand, the case is resolved by way of a plea bargain, the defendant will never know how the jury may have decided the case. Ultimately, it is the defendant, and the defendant alone, who must make the ultimate decision as to whether or not to go to trial or accept a negotiated plea. Although the attorney may give advice, the attorney is not the one who must face the consequences of a verdict or comply with the terms of a plea agreement, which often involves probation.
Most attorneys are experienced negotiators and in many instances can strike a better plea deal than the unrepresented client. Even if the facts point heavily towards guilt, an experienced attorney may be of invaluable assistance in this “negotiation” process.
How Lawyers Succeed In Plea Bargaining
In some cases, the attorney may uncover facts in the trial preparation process that can dramatically affect plea negotiations. For example, if the police have made a legally questionable arrest or an illegal search, this issue, when properly raised by a skillful attorney, may result in a more favorable plea offer. An attorney’s knowledge of the law, skill, and experience, are all factors that can affect plea negotiations. Most experienced criminal attorneys are also experienced negotiators. In my view, it is the attorney’s job to assist people who have been charged with a crime in making informed decisions about their future. Although an attorney may recommend a course of action, the decision is always that of the client.
Plea negotiations often result in some form of formal supervision. Sometimes this is in the form of “probation.” In some cases it may be “house arrest.” There are many times, however, when a client may choose to serve a relatively short jail sentence as opposed to a long period of probation or house arrest. Some people’s lifestyle makes them bad candidates for probation. For example, a person addicted to crack cocaine, unless he or she receives treatment, is highly unlikely to successfully complete probation. For most people, probation is mainly an inconvenience, and not a severe restriction on their daily life. Most experienced attorneys attempt to counsel and help people choose which disposition is best but ultimately the decision is always the client’s.
When Probation Is Not An Option
Depending on the seriousness of the crime and the strength of the state’s case, probation may not be an option. Florida has “sentencing guidelines” that take into account the nature of the offense, a person’s prior record, injury and harm to the victim, and other factors. Generally, a computation is made from the guidelines and a sentencing score sheet is prepared. Here, knowledge and experience in dealing with the guidelines is important. For example, convincing the prosecutor to change or reduce the charge may significantly change the guideline sentence. Sometimes, it can mean the difference between jail and probation, it may significantly reduce the length of a sentence, or sometimes, it can mean no jail at all.
If the charge is theft, grand larceny or a property crime, often restitution is an issue. A skilled, experienced attorney often can negotiate the amount of restitution, as well as the terms of payment. Since many times restitution is made a condition of probation, it is important that the amount not only be reasonable, but also payable. An experienced attorney should never negotiate an unrealistic amount that his or her client cannot pay since this may result in a future violation of probation. Since most criminal cases are resolved by negotiation, skill and experience in negotiating are critical. Being a good negotiator, however, is not enough. In the negotiation process, it is important that the prosecutor understand and know that the attorney is also skilled in the area of jury trials. Your defense attorney’s reputation, demeanor, trial results and years of experience are all factors the prosecutor must weigh into this negotiation process. Skilled negotiators negotiate from a position of strength, not weakness. Unless the prosecutor recognizes your attorney as a credible trial threat, an acceptable plea offer may not be extended. Some attorneys have a reputation for avoiding trials and always negotiating. The prosecutor must know your attorney is not afraid of going to trial.
The decision of whether or not to accept a negotiated plea is ultimately the client’s alone. In our years of experience in defending criminal cases, we have found it best to never try and convince or force someone to accept a plea bargain. Our goal is to help a client make an informed and intelligent decision. In this regard, the attorney’s participation in countless trials and observation of hundreds of verdicts may be helpful in the decision-making process.