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

What is a plea of 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.

What Is 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, prosecutors may seek out plea agreements.

Additionally defense attorneys may negotiate possible plea offers to resolve cases in the best interests of their clients.

Why would a prosecutor want a plea deal?

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 may seek out plea deals.

From an evidentiary standpoint, 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 from the prosecutor.

What options may a prosecutor agree to in a plea bargain?

  • 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

What is the best reason for a defendant to consider a potential plea deal?

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

When are plea deals typically negotiated?

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.

What are some alternatives that may be negotatied in a plea bargain to avoid going to jail?

Alternatives to jail or prison can include community service, deferred judgment, participation in court-approved drug, alcohol or other treatment programs and home monitoring.

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.

Does a judge have to approve a plea agreement?

A plea agreement must be approved by the court. In rare situations, a judge will reject an agreement made by a prosecutor and defense attorney requiring a renegotiation of the plea.

The Plea Must Be Voluntary

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 verdict1
  • 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

Do you have to agree to the allegations against you when accepting a plea?

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).

What is an Alford plea?

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 trial2. 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:

Are there exceptions to these rules?

There are exceptions to these rules in the following circumstances. 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

What are considered 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.

Withdrawal Of A Plea And Conditional Pleas

To withdraw a plea agreement a defendant has to file a motion to withdraw a plea4.

To prevail in this motion there must be “good cause” and you must show “mistake ignorance or inadvertence, or for any other factor overreaching a defendant’s free and clear judgment, the fact of such mistake, fraud, duress or overreaching must be established by clear and convincing evidence” is what the court has stated in People v. Griffin5.

Under what circumstances can a plea be withdrawn?

  • Your defense attorney failed to fully investigate your case and exculpatory evidence comes to light that a competent attorney would have discovered earlier
  • Your plea was entered by your attorney without your consent
  • You were denied a fundamental right such as the right to have an attorney
  • You were not advised of the immigration consequences if you plead guilty6
  • You were given promises off the record or threatened or coerced into a plea7

What is a conditional plea?

There is also a conditional plea arrangement. You may choose to plead guilty to a charge that is conditioned on the right to appeal the admissibility of certain evidence. If the evidence is suppressed, you may then withdraw the guilty plea.

Final Thoughts

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.

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  1. Sixth Amendment Constitution []
  2. North Carolina v. Alford, 400 U.S. 25 (1970). []
  3. California penal Code 1197(a)(2) –  Plea bargaining in any case in which the indictment or information charges any serious felony, any felony in which it is alleged that a firearm was personally used by the defendant, or any offense of driving while under the influence of alcohol, drugs, narcotics, or any other intoxicating substance, or any combination thereof, is prohibited, unless there is insufficient evidence to prove the people’s case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence. []
  4. California Penal Code 1018 []
  5. People v. Griffin (1950) 100 Cal.App.2d 546, 548. []
  6. People v. Soriano, 194 Cal.App.3d 1470 (1987), People v. Barocio, 216 Cal.App.3d 99 (1989), People v. Bautista, 115 Cal.App.4th 229 (2004). []
  7. People v. Brown (2009) 175 Cal.App.4th 1469,  1472. []


My son accepted a plea bargain for 20 years. His plea bargand charges were for 211, 5 years, gun enhancement 10 years gang enhancement 5 years. His original charges were attemted murder, shooting at a car . i feel that the attorney was incompetent and never really got into my sons case! There is a lot of holes in the prosecutions case and my son was scared of getting a life sentence. So is this legal he was charged in california.

Sounds like he was represented by a “public pretender” if he hasn’t been Sentenced yet he should fire his attorney immediately and ask for better proper counsel! Also 99 percent of the time when takin to trial even on serious charges they almost always offer probation even when they have decent evidence etc . He really should take it trial even though I understand it’s a scary road to take .. 20 years isn’t a good offer . In my opinion he has nothing to lose takin it to trial

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