Maybe people are under a mistaken impression that criminal case negotiation is like other types of negotiation, quite simply, it ain't. In other types of negotiation you can just walk away. As in No Sale today, but if it's criminal charges you are facing then that's just Not an option. You can't just look elsewhere or take a break or come back with a lower price, no.
How do criminal case negotiations work?
How do older defense attorneys size up a plea?
How do you really know if you got the best deal possible?
Criminal Case Negotiation Always Involves at Least Three Things
You look at the facts.
You look at the law.
You look at the equities.
1. Criminal Case FACTS
Sometimes you have really shitty facts. There are no two ways about it. What if there was a bad accident? What if they have video and it makes your client look very bad? What if your client made all these admissions (statements) of guilt? What if they got your client to write and sign a confession? What if they even have a chemical test that shows drugs? I call some of these facts "FBCs"
aka Facts Beyond Change.
Bad Criminal Case Facts Need a Good Interpretation
They are going to need a lot of explaining. Can any of these be open to interpretation or a creative perspective? Was the confession or statements coerced? Was your client just trying to go home? Could the test be wrong or inaccurate? Could there have been any mistakes made? Do the police look and sound like bullies?
2. Criminal Case LAW
Is the Law in this case in your favor? What are the specific elements that the prosecution must prove. There are always KEY elements like a "serious" injury for an assault or a "public" disturbance for a disorderly conduct charge. If a KEY to the case is something we can question or something we can challenge because the facts put things at the line or on the fence then we can begin to argue reasonable doubt. Remember we always have "reasonable" doubt because the government must prove all of their case and it's elements BEYOND reasonable doubt.
Words like impaired or intoxicated are a legal conclusion. They will require facts to back them up or contra-facts to question their validity.
3. Criminal Case EQUITIES
Some prosecutors don't care about whether something is fair or not. They are supposed to be about justice and fairness but as nice as that sounds that isn't always true. They might just want to WIN and to PUNISH and to seek retribution. These words are the harsh underbelly of the game. Fortunately there are district attorneys and assistant district attorneys who can be fair and just. Sometimes appealing to that is all we may have, sometimes appealing to that may be the only thing that stands between your client and jail.
Once a seasoned attorney looks at the facts, the law controlling your charges, and your equities then they will hopefully know your:
1. Long Term Exposure: what could you be facing if you lose at a trial in terms of punishment
2. What are your odds of success versus failure? Being found legally innocent versus legally guilty.
3. What are the advantages to the plea bargain being offered?
Sometimes the only bargaining is a promise on the sentencing (the punishment), and there is NO bargaining on the charge or charges. In other words, you must plea to the charge as prosecuted and nothing less and the prosecutor will make a lower recommendation for sentencing. Sentencing usually has a wide range so having a promise of only asking for a specific punishment can be a great win in some situations. Every person's circumstances are vastly different.
What Can a Defense Attorney Do to Demonstrate a Criminal Case's Strength?
In a criminal case negotiation an attorney can file motions to challenge the evidence in the case. They can demand a hearing to challenge the opinions of the police and any lay witnesses. And finally they can move the case to a trial. Trials are costly in time, in energy, and in money because they demand lots of resources. Everyone involved must be physically present. Judges and their staff must set aside days of time. They must summons dozens of potential jurors. The process of selecting a jury is long and arduous. Even for a small town court with a misdemeanor levels offense you generally must start with 40 to 50 people. Of these people six will be jurors and a few alternates.
Defense lawyers have one main ace up their sleeve so to speak, A TRIAL.
Winner or loser as the case may be going to and through a trial is the ultimate pain for all involved. Trials require lots of hours, people, focus, concentration, and days, weeks, and maybe even months of preparation to do right. We have a trial prepping now (in May) to be done sometime in September. This is one involving an expert witness and multiple cops. There will be much energy expended to get to trial and work at winning it. No one goes to trial wanting less than their best effort and this requires enormous preparation.
District attorneys don't like the risk of trial and defense attorneys don't like the risk of trial. That is why 95% of cases settle with plea bargains. Certainty is comforting in this setting. Who wants the emotional burden of facing all of your stuff, sometimes your worst behavior in front of an audience?
So the threat or the demands of trial are real but they do bring things to a resolution. Defense attorneys look at their cases with a jaundiced eye. Looking at this case with the worst possible eyes what do I see? Can I see, hear, and feel a story of legal innocence here? I'm not talking about real guilt or real innocence, legal innocence is the government can't prove their case beyond a reasonable doubt.
So how do you really know if you got the best possible deal?Ask yourself, if I went to trial would I be successful? If I went to trial and lost what would I likely receive? If I went to trial do I stand a chance with all the factors in my case?
Risk versus reward is always present in this game. Sometimes the prosecutor, or the charges, or the judge leave no good choice except a trial. Better to roll the dice and see what happens if the situation is a horrible bargain. If you have nothing to lose then taking the chance and the risk isn't really so risky.
It all comes down to what they can prove or what we can dis-prove. After all is said and done, it all comes down to evidence and proof.