Once someone has been charged with a crime there are typically only three ways the criminal case can end. Those three ways are a dismissal, a verdict at trial, or a by taking a plea. The most prevalent of those ways is the defendant taking some sort of plea.  Clients often ask about getting a better plea offer, or making a counter plea offer. Unfortunately, that process is not fully understood by most people. In this blog, we will discuss getting a better plea offer, what that entails, and how rare it is. Like all our blogs, this is intended for general informational purposes only and not as a substitute for the advice and counsel of a criminal defense attorney.

Common misconceptions about getting a better plea offer.

There is a lot of misinformation about the criminal justice system for many reasons. People often do not understand their rights and they do not understand the process and because of that, incorrect information spreads. This is especially true when a defendant is in jail. Defendants in jail hear stories about other people’s cases, and they assume that their situation in the same or outcomes will be the same. This could not be further from the truth. Every criminal case is very fact specific and there are many things that must be weighed that will contribute to the outcome of that case.

Regarding plea offers, we have heard clients say – “the first plea offer is usually the worse one” or, “the third plea offer is the best one”. This is just false.  There is no blanket rule about which plea offers are going to better, in fact most defendants only get one plea offer. Further, usually if you reject the plea offer and try to get a different one later the new plea offer will often be much worse than the previous one.

Getting a better plea offer is not simply a matter of asking for one.

The plea offers a defendant gets from the prosecutor is typically based on the criminal record of the defendant and the strength of the prosecutor’s case. Another factor that may come into play is whether the defendant has helpful information that law enforcement would NEED to convict others. Getting a better plea offer would involve your attorney asking for one based on one of these factors or another significant factor.

Criminal history of the defendant

The first plea offer you get is going to consider the criminal history of the defendant. If the prosecutor is in error about the prior convictions and the error is significant, there may be room to negotiate something better. If the criminal history calculation the prosecutor used to make the offer is correct, there is no reason for the prosecutor to change their offer on this basis.

Information provided by the defendant.

There are some cases where the prosecutor will give a better plea offer to a defendant, if he gives them information needed for the conviction of someone else. The problem is, often our clients have information that they are willing to share, but the prosecutor already had a solid case against the other person, therefore our client’s information is not NEEDED.  Simply being willing to provide information is not enough.

Strength of the case against the defendant

Maybe the most convincing method of getting a better plea offer is for your attorney to point out some weaknesses of the case to the prosecutor. For the prosecutor this will be strictly a risk vs. reward analysis.

If the prosecutor is convinced that they could lose at trial, then a better plea offer may be given to negate that risk and get some sort of conviction. Similarly, if the prosecution has a strong case against you there is much less risk of them losing and getting a better plea offer is much less likely.  If the state or federal government has a substantial amount of evidence against you and they know they can win at trial, there is no incentive to give you a better plea offer.

Criminal cases are complicated and require professional assistance. If you have been charged with a crime, hire lawyer, and listen to that lawyer.

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