4.6 Contact with the Commonwealth’s Attorney

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

4.6 CONTACT WITH THE COMMONWEALTH'S ATTORNEY

4.601 Overview. If a commonwealth's attorney prosecutes the matter in the court where the case is pending, any final negotiation will necessarily be between the attorneys. When the defendant's case has apparent substantive or procedural defects or the client's aims can reasonably be accomplished without a trial, an attempt to negotiate a plea may be beneficial. Defense counsel is generally much more familiar with the details of the client's case than anyone else, and this advantage can be used in developing a proposal for settling or "packaging" the matter by agreement without trial.

The first possibility of resolving a case lies with the prosecutor's office. For prosecutors, the general district court docket usually presents a burdensome, heavy caseload. If the prosecutors know that defense counsel is both able and willing to try these cases, they are often willing to talk seriously about a negotiated plea. The judicious use by defense counsel of court reporters can enhance this perception.

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Familiarity with the commonwealth's attorney or the assistant who is trying the case can be extremely important in developing a successful negotiation strategy. Factors such as the assigned attorney's level of experience or the likelihood that he or she will entertain a reasonable pretrial resolution of the matter will play into the negotiation. Local knowledge of outcomes in similar cases can also be important. An experienced prosecutor may better understand how a particular type of crime fits into the overall scheme of things, be better...