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Plea Bargaining Strategies

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Criminal Justice System

How Are Criminal Cases Dealt With?

All criminal offending is determined by the court and if found guilty (or a plea of guilty entered) then a criminal conviction can be recorded, and a sentence ordered. Every defendant is considered innocent until proven guilty and this is the main purpose of the criminal justice system. It is the responsibility of the prosecutor assigned to the case to prove beyond a reasonable doubt that the defendant accused committed the offences they have been charged with.

If you are not able or willing to enter a guilty plea for your offences then the matter will be determined by either final hearing or trial. If you choose to plead not guilty and allow your matter to progress to a final hearing then your fate is being placed in the hands of the judges and jury responsible for making the determination.

Unfortunately, even if an individual is innocent this may not always be reflected in the evidence available and it can create a lot of stress. In many instances, people are leaning towards plea bargaining and plea negotiations so that they can try to ensure a less severe outcome.

What Do I Need To Know About Trial?

If you have decided to plead not guilty to a criminal offence then your matter will need to go to trial for determination. Any criminal offence is a beach of the Crimes Act (specific to your state) or in the case of a felony, it may be a breach of commonwealth law.

If your matter does progress to trial then your charges will be considered beyond a reasonable doubt before a conviction is recorded. A trial is a serious matter and you will need to engage a defense lawyer to assist you with the process.

You can negotiate a plea agreement right up until the time the decision is to be handed down. Sentence bargaining can also occur as part of this process. Any plea decisions will then be provided to the court. The reason they can only be considered prior to the verdict is because a plea agreement can only be entered before a judicial determination has been made. An individual can change their plea and plead guilty any time before the decision.

Why Would I Agree To A Plea Bargain?

There are a number of reasons why an individual may agree to a plea bargain in relation to their criminal case. Usually, a plea bargain serves to reduce the sentence an individual may serve in exchange for either, information or a guilty plea.

For example, collectively an individual may be looking at five separate criminal charges for drug possession and driving under the influence. In order to settle the matter without the need for a hearing, prosecution may offer to reduce the sentence for the matters if the individual pleads guilty to four of the charges. They may even dismiss the additional charge as part of the agreement.

A plea bargain can certainly work to an individual’s advantage if they have information which is of relevance to either police or prosecution. A low-level drug dealer may be able to provide information about his suppliers to police in exchange for a reduced sentence. In this instance the criminal defendant has bargained what he knows to get a better outcome.

Factors Taken Into Account By Prosecution

When considering the appropriateness of a plea bargain, prosecution need to consider whether the defendant should be given the privilege. Plea bargaining can cause a distorted image of the legal system as people can come to assume that they can trade information if they offend and simply keep offending with no change to their behavior. Each criminal case needs to be considered on its own merits.

Factors which will influence this relate to the defendant’s criminal history, the particular case and its circumstances, whether a lighter sentence will be less than the recommended sentence, etc. If a defendant has a significant criminal history for example, a plea bargain will not assist in rehabilitation or learning from one’s actions. Defendants still need to learn that their behavior is unacceptable.

Considerations also need to be taken into the message it will send the general public and wider community. A lesser charge being provided due to a pela agreement or a reduced sentence may cause a feeling of injustice to victims and those affected by the criminal offending. The image of public safety may become distorted.

Ultimately, the role of the prosecutor is to obtain justice for victims of criminal activity. They act for the state and any negotiation must have that in mind.

Negotiated Agreements

Does The Court Need To Accept My Negotiated Agreement?

The short answer is no, the court does not need to accept your negotiated agreement. Each criminal case is unique and just because a plea deal is reached does not mean it is supported by the court or the judge. The court may consider that certain facts have been omitted or that the consequences/punishment is not severe enough or that a lack of consideration has been given to a particular issue.

Reduced charges or a reduced sentence is a privilege not a right and judges may hold different opinions about negotiations and their outcomes. For example, the prosecutor and defendant may have agreed for a felony to be downgraded and therefore the term of imprisonment to be reduced however the judge may consider the offence too serious to be downgraded. In this instance the judge will have the judicial discretion to refuse the plea bargain.

In most circumstances however, the prosecution will know how likely it is that the court will accept a negotiated plea bargain and they will not make deals which will not be made. It is important in criminal matters for a defendant to access legal advice in their area so that there is a personal knowledge of how each particular judge makes decisions. Knowing and understanding the decision making involved in previous criminal cases is key.

Access To Justice

There are no guarantees with the criminal justice system. An individual who is guilty could easily be found not guilty the same as a not guilty person being found guilty. The law aims to protect victims and the wider community from harm and provide punishment where possible but the system is far from black and white.

Evidence gathered in a particular case must adhere to the chain of custody principles. One wrong move by prosecution, a lab technician, or police officers involved and the evidence could be considered inadmissible. Similarly, one wrong comment, picture or documents in a matter could essentially seal the deal for a guilty verdict. With a high number of variables to be considered at every turn, sentence bargaining has become a more common practice because instead of trying to defend innocence, many defense attorneys are trying to limit the punishment.

For example, a criminal case involving drug trafficking which typically carries a heavy penalty will usually have a lot of evidence. What it may not have however is evidence which specifically ties an individual to the charge. The existence of drugs on a person is possession and evidence of the sale of those drugs is supply, but it is hard to link simple possession and sale of drugs to trafficking of drugs. Therefore, that information may be used to provide a lighter sentence in exchange for evidence.

The plea bargaining process however must be weighed against the overall justice to victims. A defendant accused of a violent assault which has caused semi-permanent or permanent impairment should not have the option of a reduced sentence or lesser charge given the damage their behavior has caused. Therefore, the pros need to be weighed against the cons.


A good plea bargain will involve give and take on both sides. It is important to offer something decent when negotiating in order to entice a good response from the prosecutors. When negotiating, the golden rule is that neither party should be completely happy. There should be an understanding from each side that the information shared by the defendant or the concessions they are willing to make is probably absent their personal safety and therefore protections need to be put in place.

A defense attorney is a criminal lawyer whose role it is to assist a criminal defendant with their legal matters. This may be through the provision of general advice or through representation before the court. Defense attorneys are experts in the criminal law field.

Legal advice in a criminal law matter is critical because the consequences can be so severe. Obtaining advice from criminal law attorneys will ensure that you know the process of both criminal trials and plea bargaining approaches which may work for your criminal case.

Sentencing refers to the punishment or consequences an individual faces once they have been found guilty or plead guilty to their criminal offences. Sentencing can be a monetary fine, term of imprisonment or a range of other punishments aimed at deterring both the individual and the wider community from committing further criminal acts.

Common or mandatory sentencing for certain criminal offences can be found within the legislation whereas other matters have discretionary sentencing which is determined by the judge. This is one reason defendants are favoring plea bargains as they have more control over what sentence is given.

Theplea bargaining process offers police and prosecution an opportunity to leverage information from criminal defendants to serve the overall greater good of society. It provides a bargaining power to take down dangerous criminals by negotiating deals with lower-level criminals. It is a greater access to justice for victims as well.

If an individual has been charged with six offences and they are willing to plead guilty to four of those offences under a plea bargain, this is better than the chance that they could be found not guilty entirely at trial. Even if an individual is guilty, there is no guarantee this will be proven beyond a reasonable doubt at trial. Sometimes it is better to achieve some level of justice than none at all.

Mental health can be a factor in the negotiation of a plea bargain given the toll a particular sentence may have on that individual. In many instances mental conditions can also play a role in unsuccessful or difficult trials so in an effort to avoid that bargaining may take place to settle the matter out of court. This is of course so long as the mental condition does not prohibit the existence of negotiation.

If you are seeking to use a mental illness as a serious consideration is a criminal law matter, then specific psychological or psychiatric evidence will need to be presented to the court. Without independent evidence, there can be little weight given to the argument.

Usually, a plea bargain will be negotiated between the prosecutor and the defendant's defense attorneys. If the defendant does not have a defense attorney, then they may choose to negotiate the deal themselves.

The prosecution represents the state during negotiations so they will have the ability to make certain deals and they will know what deals they cannot make. Either party can however start the negotiation and bargaining process no matter who has the power to make decisions.


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