1972, November, Pg. 1. Techniques of Plea Bargaining.

• Author: by Karen Metzgerx

2 Colo.Law. 1

Colorado Lawyer

1972.

1972, November, Pg. 1.

Techniques of Plea Bargaining

1Vol. 2, No. 1, Pg. 1Techniques of Plea Bargainingby Karen MetzgerxKaren Metzger, Denver, is a member of the Colorado and Denver Bar Associations. A former staff attorney for the Office of the Public Defender, Ms. Metzger is now completing work on a master's degree in law at the Harvard Law School."Take some more tea," the March Hare said to Alice, very earnestly.

"I've had nothing yet," Alice replied in an offended tone: "so I can't take more."

"You mean you can't take less," said the Hatter: "it's very easy to take more than nothing."

Even though less than 10 per cent of the criminal cases filed each year are tried, plea bargaining as a means of dispute resolution is still very much a stepchild of the criminal process. Little is written about it; even less is considered formally in law school classes---possibly because the criminal lawyer is still viewed primarily as an advocate. Today's processes dictate that he learn to succeed in an administrative role as well, and this includes knowing the rudiments of plea bargaining.

If dismissal of all charges is not feasible, you are probably trying to obtain the minimum plea possible. You must be really ready for trial before you can bargain effectively on behalf of your client. Any guilty plea means a waiver of almost all rights a defendant has; this article discusses some minimum standards to ensure that a client also has not waived his right to effective counsel when he pleads guilty.

Try the Case in Your Own Mind.Before beginning any serious negotiation with the prosecutor in a case, ask yourself "What do I already know?" Recheck your knowledge of the facts of the case: review the evidence each side will present if it goes to trial, and assess it from the standpoint of the relevant case and statutory law as well as from the psychological impact it may have on the trier of fact. Be relentlessly realistic here, as the ultimate disposition of the case will depend on your analysis. Remember that the facts a witness will recite may not be as important as how he says them, since credibility is vital to either side of a criminal case. If you have the time, look through a set of pattern jury instructions that might be used in your case if it goes to trial, and put yourself in the jury (or judge's) place. How do you honestly think each side will stand up? What will probably be the theory of the prosecution's case, and will its available evidence support that theory beyond a reasonable doubt? What is the theory of your case? Are you sure it will stand up under cross examination? Make this analysis for each count charged against your client.

2Determine the Probable Sentence.Suppose that you went to trial and lost. What would be the probable sentence your client would receive? An accurate estimate requires detailed knowledge of the client, including all the information about him that would be on a pre-sentence or probation report. If you are unsure of the nature of information in these reports, ask the head of your probation department to explain it to you. An example of factors to be considered is proposed 18 U.S.C. § 3101(3), listing criteria for allowing probation after a federal conviction:

(a) the defendant's criminal conduct neither caused nor threatened serious harm to another person or his property;

(b) the defendant did not plan or expect that his criminal conduct would cause or threaten serious harm to another person or his property;

(c) the defendant acted under strong provocation;

(d) there were substantial grounds which, though insufficient to establish a legal defense, tend to excuse or justify the defendant's conduct;

(e) the victim of the defendant's conduct induced or facilitated its commission;

(f) the defendant has made or will make restitution or reparation to the victim of his conduct for the damage or injury which was sustained;

(g) the defendant has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial period of time before the commission of the present offense;

(h) the defendant's conduct was the result of circumstances unlikely...