Plea Bargaining

There is no perfect or simple definition of plea bargaining. Black’s Law Dictionary defines it as follows:

“[t]he process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.”

In practice, plea bargaining often represents not so much “mutual satisfaction” as perhaps “mutual acknowledgement” of the strengths or weaknesses of both the charges and the defenses, against a backdrop of crowded criminal courts and court case dockets. Plea bargaining usually occurs prior to trial but, in some jurisdictions, may occur any time before a verdict is rendered. It also is often negotiated after a trial that has resulted in a hung jury: the parties may negotiate a plea rather than go through another trial.

Plea bargaining actually involves three areas of negotiation:

  • Charge Bargaining: This is a common and widely known form of plea. It involves a negotiation of the specific charges (counts) or crimes that the defendant will face at trial. Usually, in return for a plea of “guilty” to a lesser charge, a prosecutor will dismiss the higher or other charge(s) or counts. For example, in return for dismissing charges for first-degree murder, a prosecutor may accept a “guilty” plea for manslaughter (subject to court approval).
  • Sentence Bargaining: Sentence bargaining involves the agreement to a plea of guilty (for the stated charge rather than a reduced charge) in return for a lighter sentence. It saves the prosecution the necessity of going through trial and proving its case. It provides the defendant with an opportunity for a lighter sentence.
  • Fact Bargaining: The least used negotiation involves an admission to certain facts (”stipulating “to the truth and existence of provable facts, thereby eliminating the need for the prosecutor to have to prove them) in return for an agreement not to introduce certain other facts into evidence.

The validity of a plea bargain is dependent upon three essential components:

  • a knowing waiver of rights
  • a voluntary waiver
  • a factual basis to support the charges to which the defendant is pleading guilty

Plea bargaining generally occurs on the telephone or in the prosecutor’s office at the courtroom. Judges are not involved except in very rare circumstances. Plea bargains that are accepted by the judge are then placed “on the record” in open court. The defendant must be present.

One important point is a prosecuting attorney has no authority to force a court to accept a plea agreement entered into by the parties. Prosecutors may only “recommend” to the court the acceptance of a plea arrangement. The court will usually take proofs to ensure that the above three components are satisfied and will then generally accept the recommendation of the prosecution.

Moreover, plea bargaining is not as simple as it may first appear. In effectively negotiating a criminal plea arrangement, the attorney must have the technical knowledge of every “element” of a crime or charge, an understanding of the actual or potential evidence that exists or could be developed, a technical knowledge of “lesser included offenses” versus separate counts or crimes, and a reasonable understanding of sentencing guidelines.


Inside Plea Bargaining