PLEA BARGAINING. The plea bargaining stage can start even while your lawyer is working on the discovery and the evidence. Typically this starts with an offer from the prosecutor or with a conversation between you and your lawyer about the facts and evidence in your case.

Plea bargaining is about mitigating risk. The prosecutor may make an offer so that they don’t have to risk you being found not guilty at trial. Sometimes, they are making an offer because they think that the Judge might give you a lesser sentence than they are offering, and they want to mitigate that risk. Sometimes the prosecutor makes an offer because they don’t want to risk a victim in a case being traumatized further by the stresses of trial. Regardless of their reason, the prosecutor is making you an offer so that they can mitigate the risks they would have in going to trial.

You might also want to mitigate your risk. The State’s evidence against you might be pretty convincing and you are afraid you will be found guilty of something worse than the State would offer in a plea bargain. You might also be afraid that the Judge would punish you more harshly than the what the State is offering. Even if you feel you are innocent and that you have some evidence that helps in your case, you might still have risk of being convicted of something.

There is a common belief that you should never accept the first offer from the prosecutor and that you have the “right” to at least three offers. This is largely wrong. There is no “right” to any plea offer from the prosecutor. The State doesn’t have to make you an offer at all, and they definitely don’t have to make three. Sometimes the first offer from the prosecutor is their best offer. Sometimes there is room to negotiate. It depends on the case, on the prosecutor, on the Judge, and on the evidence. The advice of your lawyer is your best guide in understanding how to negotiate for the best plea offer you can get.

If you think you would like to consider a plea bargain, you should talk it over with your lawyer. Even if you don’t want to plead guilty, you should talk it over with your lawyer. Discuss your concerns, the risks you want to avoid and the outcomes you are wiling to accept. Listen to your lawyer’s concerns and advice about the possible outcomes he or she sees in your case. Then make your decision. At the end of the case, you have to live with whatever decision you make on pleading guilty. Once a judge has accepted a guilty plea, you can’t take it back. You ARE guilty from then on under the law. Likewise, if you reject a plea and then later get convicted of something worse or sentenced to something more harsh, you can’t go back and ask for that plea offer again. It’s gone, and you have to live with the choice that you made.