The Plea Bargain Process Between Prosecution and Defense Attorney

The plea process is an essential component of the criminal justice system. Below we describe in detail how this process plays out in a case.

Overview Of Plea Bargaining

The plea bargain is an agreement between a criminal defense attorney and the prosecution to resolve a criminal case and ends with a defendant pleading guilty or nolo contendre (no contest) in exchange for a reduced sentence or to a lesser charge.

Nolo Contendre

A plea of nolo contendre is a guilty plea. Its effect is in civil cases where a victim may elect to sue the defendant for civil damages by not allowing the plea in the criminal case to be evidence of an admission of guilt to the underlying charge.

About 90% of all criminal cases end in a plea agreement. The ones that do go to trial are usually in matters where one side will not accept a plea offer if one is offered and/or the defense believes that the prosecutor cannot prove its case.

The Motivation For Plea Bargaining

People are arrested and charged with crimes every day, putting tremendous stress on the court system, jails and prisons. To resolve the tremendous number of cases, a prosecutor and defense attorney may agree to a sentence reduction or a charge reduction.

In a plea bargain, the prosecution may agree to:

  • Reduce the number of criminal counts in a complaint
  • Reduce the charge from a felony to a misdemeanor or misdemeanor to an infraction
  • A plea to set charges in exchange for not adding other charges
  • An agreement to reduce the sentence based on the defendants’s lack of a record or weakness of the evidence
  • A plea to a set of charges in return for a reduced or alternative sentence in exchange for information or to testify against other defendants
Potential Defendant Motivations

On the other hand, most defendants are motivated to resolve their matters quickly and satisfactorily, depending on the strength of the evidence against them and if facing prolonged incarceration. A defendant is generally motivated by avoiding:

  • A likely harsher punishment if a plea agreement is not accepted and the defendant is convicted at trial
  • The expense of a trial

Avoiding incarceration is a prime motivator for many defendants. Alternatives to jail or prison can include community service, deferred judgment, participation in court-approved drug, alcohol or other treatment programs and home monitoring.

Changing Case Dynamics

Even in a case where the evidence appears weak, the matter can unexpectedly turn against a defendant especially if other witnesses come forth or incriminating evidence is found or the prosecution decides that additional charges will be added based on new evidence. Likewise, a prosecution witness can turn out to be discredited, non-cooperative or disappears, or a motion to suppress evidence is granted to the defense, turning a strong case into an uncertain one and prompting a plea offer.

Most plea agreements in misdemeanor cases are worked out at the pretrial conference with some resolved at the arraignment. In felony cases where plea bargains are permitted, the prosecution and defense can arrive at an agreement at any stage of the criminal proceedings, including during or after a trial but before a jury arrives at a verdict.

If there is a hung jury or one where a jury is divided on a verdict, the parties will typically resolve the matter in lieu of retrying the case.

The Involvement Of Judges

Judges get involved in the plea process as well. By meeting in chambers with the prosecution and defense attorneys who may be entrenched in their positions, the judge will generally assess the evidence against you and whatever defenses are available. A judge will also weigh any offers made by the state and what you are willing to accept.

Judges can present what they feel is a good offer based on the current evidence and may offer an insight into how they may rule on the admissibility of contested evidence in an effort to persuade the sides to come together. Also, a plea agreement usually must be approved by the court, although it is rare that a judge rejects one.

Voluntary Plea

Once a negotiated plea is accepted, the court will question you to ensure that you are entering into the plea voluntarily with no promises except as to those in the plea agreement and with knowledge that you are waiving certain rights, including:

  • Right to a trial by jury of 12 persons who must find you guilty by a unanimous verdict
  • Right to subpoena witnesses
  • Right to be represented by your own attorney
  • Right to cross-examine witnesses against you
  • Right to present your own witnesses and evidence
  • Right to remain silent and to not testify or offer any evidence
  • Understanding of the immigration consequences if you are not a US citizen or of other constitutional rights
  • In some cases, waiver of the right to appeal
Admitting To Allegations

Generally, a judge will require that you agree to the factual basis outlined in the complaint or admit to the allegations (you assaulted the victim without provocation). You may, however, offer an Alford plea where you do not admit to the offense but agree that there is sufficient evidence to convict you at trial. This plea has the same effect as nolo contendre. An adverse consequence of an Alford plea is that a probation officer and judge may feel that your failure to take full responsibility for your conduct weighs against a lenient sentence. This a matter to be discussed with your defense attorney.

Prohibitions On Plea Bargaining

There are certain felony cases where California law prohibits the state from plea bargaining. These include:


There are exceptions to the exceptions, however, A prosecutor can offer a plea agreement in cases where:

  1. There is insufficient evidence to prove the state’s case
  2. The testimony of a material witness cannot be obtained
  3. Or, a reduction in the charges or dismissal of one or more would not result in a substantial change in sentence
Serious Felonies

Serious felonies encompass a great many crimes. These include but are not limited to:

There are plea bargains in these cases, however, even if the evidence is substantial and credible so long as the deals are worked out before an information or an indictment is drafted, which is prior to an arraignment or before the preliminary hearing is held.

Plea bargaining requires that your defense attorney be well-versed in the facts and circumstances of your case, the strength and weaknesses of the evidence, possess a strong knowledge of the law and be aware of the character and tendencies of the prosecutor and judge.

Withdrawal Of A Plea And Conditional Pleas

Any time a defendant is granted probation, there are conditions attached that must be followed. These are dependent on the nature of the offense, the victim’s status and other circumstances. If the probation is formal, you must meet with your probation officer in accordance with whatever schedule is imposed.

Other common conditions include:

  • Random drug testing
  • No victim contact
  • Participation in an appropriate treatment program
  • Performance of community service
  • No association with gang members, if applicable
  • Payment of restitution
  • Submit to searches of your person or property by law enforcement without a warrant
  • Make good faith efforts to find employment or remain employed
  • Stay in school
  • Inability to leave the state without permission
  • No change of residence without advance notice or permission in some cases
  • Serve a certain time in jail or prison

Other conditions may be ordered by the court that are commensurate with the offense.

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