By Collin County Criminal Defense Lawyer Jeremy Rosenthal
A criminal plea negotiation is like any other contractual bargaining discussion meaning at the very least it requires two parties to say “yes” to a singular outcome — or there isn’t a deal.
Prosecutors ask Defendants to waive many constitutional rights — the most important of which to them is a the Defendant’s right to a time and resource consuming trial. The defendant typically (though not always) seeks certainty, leniency, or to “cut their losses” in plea negotiations.
Plea negotiations based on these bargaining positions are unfortunately a one-sided affair by their very nature. The Defendant plays with real money and prosecutors play with monopoly money.
An accused has actual money to pay to his/her lawyer, has a possible criminal record in the balance which can cost them a job or income in the future, and obviously an accused has to weigh the possibility of going to prison in some circumstances.
On the other hand prosecutors typically lose very little by losing at trial. In theory they are public servants and don’t want to be seen losing cases… but very few cases are high-profile enough where the DA’s office or their junior assistants fear any real public backlash. Some prosecutors, unfortunately, actually see trying weak or bad cases as being tough on crime in their bizarro world because those same prosecutors clearly presume the accused guilty despite the weak evidence in the case.
What does work in an accused favor in plea negotiations is the prosecutors are handling anywhere between 750 and 2,000 cases per court at a time. This means they’re often seeking the path of least resistance and they can’t possibly try or contest every single case. They have a choice of being reasonable during plea negotiations or having their docket grind to a halt if they insist on never giving an inch regardless of the reason.
There are other effective ways for an accused to plea bargain. Many prosecutors are fair and have a decent sense of what is just when presented with proof the accused deserves leniency or another chance. Many other prosecutors, in contrast to one’s I’ve described above, rightly fear losing in a public forum. Similarly, the cases a prosecutor fears losing also tend to be more problematic and time consuming for them. I noticed as a prosecutor when cases were thoroughly researched and investigated by a defense lawyer, trying the case would be frustrating at the very least. Whether I’d admit or not, my guess is I was more inclined to offer a favorable deal to get of rid such “problem-child” cases.
What does this mean if you’re accused of a crime? It means you should have a lawyer prepared to do battle on two fronts. The lawyer should thoroughly investigate the legal and factual defenses of your case… and as a backup, be able to demonstrate to the prosecutor the accused is worthy of leniency even if found to be guilty.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation, you should contact an attorney directly. Contacting the attorney through this forum does not create an attorney-client relationship and any such communications are not considered confidential nor privileged.