V. Plea Bargaining


“Plea bargaining” is a term used to describe settlement discussions between defense counsel and the prosecutor in the criminal context.  If charged with multiple offenses in an indictment, a defendant who wishes to reduce his exposure to a lengthy sentence may wish to plea bargain with the government.  The government may be concerned about the strength of its case, or may be concerned about the time and expense that might be necessitated by a lengthy trial in the event such a bargain could not be obtained.  In short, it may be to the mutual benefit of both parties to plea bargain, or attempt to settle, a criminal case.  If a defendant voluntarily pleads guilty, the government obtains the sought-for conviction. If the defendant agrees to plead guilty and give up his constitutional right to trial by jury, the government is spared the expense of a trial.  In other words, if the government can obtain a plea bargain from the defendant, there is no way the government can lose its case and the government will have succeeded in obtaining the conviction sought. On the other hand, a defendant who successfully plea bargains may reduce his sentence substantially and may escape the penalties he otherwise would face if he proceeded to trial by jury and lost.  Therefore, because it is to the mutual benefit in the typical criminal case for both parties to attempt a settlement of their dispute, plea bargaining is engaged in practically every single case within the federal judicial system.

Plea bargaining in the federal criminal process can literally take place at any stage of the proceeding.  It is not uncommon for individuals who know that they are under criminal investigation to attempt to arrange a plea bargain before they are even charged with a federal criminal offense.  Also, once someone is indicted, plea bargaining discussions are inevitable.  If the government proceeds with formal charges against an individual, that individual must either stand trial on the charges or attempt to arrange a plea bargain.  If the government does not offer a plea bargain to the defendant, either the defendant must stand trial or plead guilty as charged.   Because ninety percent (90%) of all convictions obtained in federal court are obtained by way of guilty pleas, it is clear that plea bargaining is one of the fundamental cornerstones of the federal criminal process.  Rule 11 of the Federal Rules of Criminal Procedure sets forth the requirements and procedures for pleas in federal criminal cases.

Next Section: A. Plea Bargaining and Rule 11

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