Section 6.23 Waiver as Tool of Plea Bargaining

• Library: Criminal Practice 2012 Supp

D. (§6.23) Waiver as Tool of Plea Bargaining

It is increasingly common in rural practice for prosecuting attorneys to make an initial plea offer before the time for a preliminary hearing. Plea offers are thus conveyed to the defendant to entice the defendant to waive preliminary hearing. Obviously, prosecuting attorneys will thereby avoid presenting numerous cases on an already overcrowded grand jury docket and will also ensure that dispositions are possible and encouraged when the cases are bound over to circuit court. Consistent with plea offers being made at or before the time of preliminary hearing, early discovery is being supplied to defense counsel by prosecuting attorneys more and more often. Counsel is cautioned to weigh the advantages and disadvantages of conducting the preliminary hearing against obtaining a plea offer that later may be withdrawn or modified. Typically, the plea offer is contingent on waiver of the preliminary hearing and often on waiver of any pretrial motions. Counsel should never waive the preliminary hearing without benefit of discovery first. Ultimately, however, it is the client’s choice, and some clients may want to accept the agreement and waive the preliminary hearing, being comfortable with the certainty of their sentence in circuit court.

“Discovery” is often not a “total picture” package. It often takes time for reports and evidence to be developed and disclosed. Often, subsequently developed evidence is even more harmful or detrimental to the accused. In the context of drug prosecutions, it is also increasingly common for laboratory examinations of suspected controlled substances to be delayed for months by backlogged, understaffed, and overworked crime labs.

In practice, field test results and law enforcement opinions (see §6.13 above regarding crime lab reports) regarding the presence or identity of a controlled substance are arguably enough to meet a probable cause standard, at least before most grand juries. Even when the evidence will be scrutinized by a careful preliminary hearing judge, those clients who are certain of the suspected substance’s offending nature are often well advised to not wait for a much-delayed lab report that may not only confirm the quality of the substance but also provide the prosecution new and often more serious information regarding quantity that, for example, may elevate a simple C felony possession charge, §...