The Basics of Negotiating Your Criminal Case

Apr 19, 2022

While no one can guarantee a particular outcome with a jury trial, negotiating your criminal case may secure a resolution to your criminal charges.


Be Open to Negotiating With the Prosecution


While a jury trial is often the only way to fight for the optimal resolution in your case, your lawyer should always be open to negotiating with the prosecution.  Why? Because no lawyer can guarantee a particular outcome with a jury trial, but negotiation is one means by which you can sometimes secure a guaranteed resolution to your criminal charges. There are no set rules for negotiating with the prosecution, but I’ve included some of the best practices below.


What Is a Plea Deal?


A plea bargain or a plea deal occurs when the defendant and prosecution agree on settling the charges without a trial.

It typically involves for the defendant to plead guilty to the original charge or a downgraded offense in exchange for reducing the number of charges or a lighter sentence. By accepting the plea agreement, the defendant may avoid getting the maximum sentence for that particular crime. However, by accepting plea bargains, they can also lose the chance of a jury trial, and it may become extremely difficult to withdraw a guilty plea.


Tips for Negotiating with the Prosecution


Set the Floor Early and Often

Anchoring or focalism is a cognitive bias that describes the common human tendency to rely too heavily on the first piece of information offered (the “anchor”) when making decisions. Once an anchor is set, other judgments are made by adjusting away from that anchor, and there is a bias toward interpreting other information around the anchor. If you start low, your opponent will, to some degree, be more inclined to go low.

ABN. Always Be Negotiating

It’s not a one-time event where you shoot an email, get no response, and throw up your hands.  It’s the culmination of a relentless pursuit for the optimal outcome. Get face time with the prosecutor to discuss your case. If you can’t get that, try to talk to her over the phone.

Pause Negotiations and Adequately Prepare

Just because you received a “no” initially, doesn’t mean you’ll receive “no” forever. Also, make sure you decide in advance of negotiations, what, if any, evidence or arguments you are willing to reveal in an effort to secure your desired outcome. Sometimes, revealing information too early can harm your case.

Negotiate With a Narrative

Having a well-crafted narrative that incorporates any negative facts is better than a blunt email asking for a particular sentence. For example, consider the Big Bad Wolf. I could approach the prosecutor and propose that they dismiss the charges in exchange for restitution. But that request will be much more persuasive if it comes packaged with some information about who the Big Bad Wolf really is. I could provide a brief history of how the Big Bad Wolf was raised by and ultimately rejected by a pack of wolves, that since his alleged involvement in destroying homes, he’s befriended a number of pigs in his efforts to better understand their needs, and he is now employed at a local carnival as a balloon blower.

Get Creative and Make Sure You Have the Details in Writing

Just because most cases in a particular circuit usually resolve a certain way, doesn’t mean all cases have to resolve that way. Ask yourself, is there a resolution to this case that will make everyone comfortable that doesn’t involve jail time even if it’s unorthodox?

It is also crucial to have all the details in writing. Prosecutors are busy people and might not remember the details of something you worked out with them during a busy calendar call. If I secure an oral agreement, I try to follow up as soon as possible with something in writing to confirm our agreement.


How Can We Help


Criminal defense attorneys resolve many criminal cases through plea bargaining. However, it’s important to understand the process is a compromise and that it’s up to you to criminal defendants to accept it or not. Also, bear in mind that the judge generally has the final say – they can accept the deal in full, in part, or refuse a negotiated plea deal.

‍I have successfully negotiated serious felony cases all across the state, including high-profile death penalty cases. Give me a call for a free consultation.

Practice Area: Criminal Defense