Mountain Law: How plea bargaining works |

Mountain Law: How plea bargaining works

by Noah Klug

Our criminal justice system simply does not have the resources to hold a trial for every case, so the great majority of criminal cases are resolved through a negotiation process known as “plea bargaining.” Here is a brief overview of the process.

The court will typically schedule a mandatory conference between the defendant and prosecutor in misdemeanor and traffic cases to facilitate the plea-bargaining process. In more serious cases, the attorney representing the defendant will typically contact the prosecutor to discuss the case when ready. Generally, a defendant represented by an attorney will not participate directly in plea bargaining discussions because of the possibility the defendant will say or do something that hurts the case. (However, statements made by a defendant during plea bargaining may not be used at trial.)

A plea agreement would typically involve a defendant pleading guilty to a specified lesser charge in exchange for the prosecutor dismissing remaining counts, agreeing not to file additional charges, or recommending a lenient sentence. In most circumstances, there is no restriction on a prosecutor’s ability to negotiate plea agreements (provided any agreement must ultimately be approved by the judge). As exceptions, Colorado law does not generally permit a defendant in a drunk driving case to plead guilty to a non-drunk-driving crime or a defendant charged with a crime of domestic violence to plead guilty to a non-domestic-violence crime. These restrictions on plea bargaining are significant because the consequences of a drunk driving or domestic violence conviction are more severe than for other crimes for which a defendant might otherwise plead.

There are many reasons a defendant might enter into a plea agreement, including:

1. Saving money: Hiring a private attorney to defend a case can cost a lot of money that might better be spent negotiating a plea agreement;

2. Getting out of jail: Defendants may be held in custody because they do not qualify for, or cannot pay, bail and do not qualify for release on their own recognizance. A plea agreement may get a defendant out of jail altogether (perhaps on probation or with community service obligations) or sooner than would occur if the defendant waited for trial;

3. Resolving a matter quickly and with less hassle: A defendant may prefer pleading guilty just to get a matter over with rather than going through with a lengthy, arduous, and public trial process;

4. Having a less serious offense on one’s record: A guilty plea to a lesser charge may have less adverse consequences than being convicted of a more serious charge after trial. For instance, felony convictions affect the ability to obtain and keep professional licenses, obtain employment, own or possess firearms, and vote, which is usually not the case with misdemeanors. Also, it may be less socially stigmatizing for a person to plead guilty to a lesser charge such as assault rather than being found guilty of a greater charge such as rape.

5. Taking the “rap”: There’s no getting around that some defendants may plead guilty to make it less likely that others will be charged or investigated for the crime.

The most important factor in negotiating a plea bargain is the strength or weakness of the prosecutor’s case. It may be tempting for a defendant to bluff about going to trial in the hope of securing a better offer, but this strategy can backfire if the prosecutor becomes more invested in the case after preparing for trial and doesn’t extend a better offer. Experienced criminal defense attorneys know the likely outcomes of cases, the factors that will lead to the best deals for their clients, and when the best possible deal is on the table.

Noah Klug is principal of The Klug Law Firm, LLC, a general law practice in Summit County, Colorado, emphasizing real estate, business, and litigation. He may be reached at 970-468-4953 or

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