Plea Bargains

Once you, your lawyer, and the prosecutor become more familiar with your case, an attempt to settle (resolve or dispose of) your case without a trial may be made through plea bargaining with the prosecutor. A plea bargain can take a variety of forms. In one instance, the prosecutor may ask that you plead guilty in exchange for his or her promise to recommend to the judge that a particular sentence be imposed. In certain cases, the prosecutor may offer to allow you to plead guilty to a less serious offense than the one with which you are charged. Such a plea reduces the range of sentences the judge may impose. The judge is the only one who can decide what your sentence will be (subject to limits set by law) and all bargains must be approved by the judge. Plea bargaining may continue up to or even during trial. If you do not want a trial, you may always plead guilty to all the charges brought against you whether or not the prosecutor agrees. The judge will then decide your sentence.

There are sentence ranges for all offenses. Offenses are arranged in different categories: felony, misdemeanor, and violation. Each category is further divided into classes. A felony is a crime for which you can receive a sentence of imprisonment of more than one year, or a sentence of death for the crime of murder in the first degree. The classes of felony offenses are: AI, AII, B, C, D, and E felonies, A misdemeanor is a crime for which you can receive a jail sentence of one year or less. The classes of misdemeanor offenses are A and B misdemeanors. Jail sentences for violations may not be greater than fifteen days.

A non-jail sentence may also be imposed, such as a term of probation (for misdemeanors and certain felonies), or a conditional discharge, unconditional discharge, restitution, or a fine, for example. Sometimes, a non-jail sentence may be imposed along with a jail sentence. In such a case, the probationary sentence is served after the jail sentence.

Plea bargaining often takes place while a case is pending in the calendar part. Plea bargaining is not about the district attorney “chickening out” or the defendant “copping.” Instead, the plea bargain allows both the prosecution and the defense to mitigate the risk of going to trial but accepting a disposition of the case that is somewhat less favorable that their best case scenario.

Whether or not plea bargaining will be entertained by either party depends largely on the strengths and weakness of the case and the up- or down-side potential. From the district attorney’s point of view, there is not sense in offering a low plea if he has overwhelming evidence of a defendant’s guilt. Nor would it make much sense for a defendant in such a case to seek a trial, since the likelihood of conviction is high and top-count sentence after trial will likely be higher than any offer the district attorney may make, if indeed he makes one at all.

On the other hand, if defendant believes the evidence against him is weak or he intends to put on a strong case in his own defense, he will likely reject any but the most favorable plea offer and force the district attorney to trial.

Usually, however, the decision is far more difficult. Most cases that make it to trial have issues of fact and could go either way, so a defendant will have a difficult choice if offered a plea. Also, if you are factually innocent the decision to take a plea can be particularly hard, even if the plea is favorable, since it would require you admit guilt. In such cases, you may be permitted to take a Serrano/Alford plea, which allows you to plea without admitting guilt.


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