How Defense Attorneys Negotiate Plea Bargains from the Perspective of a Former Prosecutor

It is very common for people to believe that the criminal justice system is not too complicated and that a case can be handled by whoever has been accused of a crime without the help of an attorney. As a Georgia Criminal Defense Lawyer, I can tell you that this commonality is very false.

People also tend to believe that the whole thing is a matter of luck or is a guessing game for the attorneys involved in the case - on behalf of the defendant and on behalf of the State of Georgia. This is also false.

There are many skills, techniques, and methods that must be put into play when defending a person in a criminal case. I have been practicing law for over two decades, and in the beginning, I represented the state. The past decade or so, I have dedicated my skillset to practicing as a criminal defense attorney.

In order to clear up some questions or concerns regarding one of the methods utilized by defense attorneys, I will be focusing today's post on plea bargains in Georgia.

Plea bargaining between occurs in almost every criminal case and is affected by a combination of factors.  First and foremost, the specific facts of a case will set the tone of the conversation.   This includes the severity of the offense, strength of the evidence, and individual criminal history.  A diligent prosecutor will be aware of the strengths and weaknesses of his or her case and is more likely to be persuaded by a defense attorney who demonstrates a strong command of the facts. 

The severity of the case always dictates where a plea negotiation starts.  Prosecutors will normally seek probated sentences for nonviolent misdemeanors whereas serious felonies can carry several years in prison.  A defense attorney must acknowledge this reality in order to be taken seriously by the prosecutor.  Simply put, a prosecutor is not going to substantially change a plea offer during the first plea discussion.  Initial plea offers are oftentimes very bad and it is incumbent on the defense attorney to keep the conversation going and subtly help the prosecutor to prioritize their caseload.

The first thing a defense attorney will do in negotiations is point out holes in the evidence that could pose a problem for the state at trial.  This includes but is not limited to witness issues, admissibility issues, and alternative arguments that the prosecutor may not have considered.  Prosecutors have a large caseload and are generally averse to uncertain outcomes.  When a defense attorney successfully raises issues that call the outcome of a trial into question this can give the client an advantage in negotiations.

Referring back to the individual criminal history, this is the defense attorney's opportunity to appeal to the prosecutor's sense of justice.  Penalties in criminal cases are designed to either punish the defendant, correct their behavior or rehabilitate, incapacitate the defendant through incarceration, or all of the above.  The majority of prosecutors are primarily concerned with the second option and individual history plays a major role in what they must consider.  If a client has no prior criminal history then it follows that they are more likely to respond to corrective penalties as this was just a one-time mistake.  This is where the defense attorney has the chance to humanize their client in the eyes of the prosecutor.  Until that moment the prosecutor has not met the client and has no reason to give the case any additional consideration.  Again, this is an opportunity for the defense attorney to help the prosecutor prioritize their caseload by making them realize that lesser charges and penalties will be sufficient to satisfy the goal of rehabilitation.

Finally, the defense attorney's reputation and relationship with the prosecutor will ultimately determine if the case can be negotiated.  Prosecutors generally know which defense attorneys are actually willing to take a case to trial and which ones are simply “bluffing.”  A defense attorney with a reputation for trying cases will always get the best offer in negotiations because prosecutors do not want to go to trial unnecessarily.  And while the process is adversarial, a defense attorney must always maintain a good working relationship with the prosecutor else it becomes impossible to negotiate effectively.

Practice Note

As you can see from the explanations given above, the act of plea bargaining should never be left up to someone representing themselves or even a general practitioner. It is vital to any case that the lawyer representing the defendant knows and is familiar with the specific law.

If you have been arrested, contact our offices for a consultation now. We can tell you what your options are with our firm. We can help you today.