Chapter 10 Negotiations

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

CHAPTER 10 Negotiations

Negotiations occur in almost all criminal cases. What readily comes to mind are negotiations that result in an agreed disposition of the case, whether one calls this a plea bargain, a plea agreement, an agreed disposition, or any other name. There are, however, many other subjects of negotiation in criminal cases, including

• charge bargaining
• collateral prosecutions by other jurisdictions
• collateral consequences
• handling of or waiving preliminary hearings
• venue
• the forum and judge
• dismissal or modification of charges
• timing of the trial
• evidence, including discovery
• stipulations
• bench or jury trial
• pleas
• jury selection
• jury instructions
• incarceration
• restitution
• mental health examinations
• probation and parole
• appeals
• cooperation of the defendant and others

In sum, whatever can happen in a criminal case can be the subject of negotiation and agreement.¹

Defense Counsel's Duties During Negotiations

During the plea negotiation process defense counsel have a duty to convey to the client any offers made by the prosecution.²

Victims' Rights and Plea Negotiations

Many states' victims' rights legislation gives the victim (or surviving family members) the right to confer with prosecutor concerning potential plea agreements.³ In some states the prosecutor is required by statute to inform the court of the victim's views concerning any plea agreement.⁴

Financial Restitution from an Indigent Defendant

We all know that restitution can be a subject of plea negotiations, but it can also create controversy. Commenting on plea discussions that considered requiring establishment of a $100,000 trust as a condition of resolving a death penalty case, several death penalty experts stated that the principal problem with insisting on a financial condition in capital plea negotiations is that it could be setting a term for avoiding a death sentence that an indigent defendant could not meet.⁵ In that case the negotiations broke down because the defendant would not admit he murdered his wife as she lay in a hospital bed. She had been a potential witness against him for previously beating her with a baseball bat, which was why she was in the hospital. The defendant was convicted of two counts of first-degree murder and sentenced to death.⁶

Collective Plea Agreements

What if the government offers several defendants an agreement provided they all plead guilty simultaneously—an 'everybody or nobody' deal? Here's what was said about that in an Eighth Circuit...