Negotiating Your Criminal Matters: What Matters

Posted on behalf of The Nye Law Group on Sep 13, 2013 in Criminal Law

Almost every criminal defense matter consists of negotiations between the Prosecutor and the criminal defense attorney. These negotiations, commonly known as plea bargaining, are an attempt by the attorneys to resolve the case short of Trial by jury.

While everything is fair game in plea bargaining, the primary consideration is the strength of the prosecutor’s case, both legally and factually. Of secondary importance, but still relevant to all plea bargains is the character of the accused.

Outlined below is a break-down of these primary and secondary considerations that criminal defense attorney analyze and utilize in negotiating a criminal matter.

Legal Issues, Small & Big

Legal issues are problems the State may have with the manner in how its evidence was procured. These problems traditional arise via violation of a constitutional amendment (usually the 4th, 5th, or 6th), or by relevant statutory privilege.

For example, the Fourth Amendment guarantees a citizen the right to be free from unreasonable searches and seizures. A common application of the amendment in criminal matters, especially dui defense, is on potential “bad stops”.

In driving cases, a police officer may have stopped a criminally accused without justification. If the Judge agrees that law enforcement initiated an invalid stop, the Judge may suppress evidence leading to a dismissal of the case.

In plea negotiations, it is the possibility or probability of winning on these legal issues that give the criminal defense attorney leverage in negotiating deals. A prosecutor will be more inclined to amend to a lesser charge if there is a possibility or probability of a Judge dismissing the action for a legal deficiency.

The Facts of Your Cases: Can the State Prove It

Quite naturally, the criminal defense attorney must analyze the prosecutor’s ability to prove the case at hand.

The constitution requires the prosecutor bear the burden of proving its case beyond and to the exclusion of a reasonable doubt. Framed appropriately, the relevant question for the criminal defense attorneys is not the guilt or innocence of the accused, but the ability of the prosecutor to prove the case to the appropriate standard under law.

If the prosecutor has “holes” in his case, and may not succeed in front of a Jury, the criminal defense attorney will articulate this in his or her plea negotiations with the State. The prosecutor has a vested interested in obtaining a conviction. The prospect of losing a conviction entirely might be sufficient to encourage the prosecutor to offer a favorable deal to the accused.

Missing Witness or Evidence

Relatedly, the State might have missing Witnesses or evidence that make proving the case more difficult if not impossible.
Successful prosecution of certain crimes, like assaults and batteries, are often highly dependent on the testimony of the alleged victim. If the victim is uncooperative, or has moved so that the location of the witness is unknown, then the strength of the State’s case diminishes greatly.

The criminal attorney needs to be acutely aware of any witness issues with the State, and leverage these problems into a favorable plea bargain.

Your Criminal History

Your attorney can utilize your lack of criminal history to negotiate a positive deal for you. Conversely, if you have a criminal history that shows a propensity to commit criminal activity, be prepared for an aggressive State attorney to seek enhanced penalties.

A lack of criminal history might show the State Attorney that the crime alleged was a “glitch”, or a unique one time slip up.
For example, consider the case of the young man charged with one count of auto burglary and one count of possession of controlled substances. The auto burglary is the more serious charge, and if the State proceeds and ultimately obtains a conviction on the burglary, any resolution will likely have long term consequences on the young man.
In conclusion, your criminal defense attorney is concerned with both the prosecutors’ ability to “prove” his case and your character and past conduct.

The criminal attorney will analyze your specific case with your specific facts to determine which factors are most relevant to successfully resolving your case.

Guest post written by Christian Denmon, a Tampa Criminal Defense Attorney with Denmon & Denmon Trial Lawyers . Christian is rated “Pre-eminent” by the independent review site Martindale Hubbell, “Superb”(10/10) by AVVO, and was recently recognized by the National Trial Lawyers Association as a “Top 100” Trial Lawyer


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