Plea bargain

What is a plea bargain?

This plea-bargain entry uses the federal plea-agreement procedure as its example. Federal Rule 11 permits the government's attorney and defense counsel, or an unrepresented defendant, to reach a plea agreement. For a guilty or no contest plea to a charged, lesser or related offense, the government may agree to charge or sentencing concessions. A sentencing recommendation does not bind the court; an agreed specific sentence binds it once the court accepts the agreement. The state passages below address particular procedures and restrictions, not a rule for every state. [9][2][3]

How does a plea bargain come up in a criminal case?

Under the federal rule, the prosecutor and the defense lawyer may discuss and reach a plea agreement. The judge must stay out of those talks. [9]

Federal Rule 1 sets the scope of the Federal Rules of Criminal Procedure. The federal discussion here concerns proceedings governed by those rules. The Florida, Ohio and New Mexico examples below are limited to their cited passages, not a survey of every state's plea procedures. [1]

In federal court, a plea agreement can take several forms. The prosecutor may agree not to bring other charges, or to move to dismiss them. The prosecutor may instead recommend a sentence or range, which does not bind the judge. Or the prosecutor may agree to a specific sentence or range, which does bind the judge once the judge accepts the agreement. [9]

State rules describe similar arrangements in their own terms. Florida's rule lets a defendant plead guilty to a lesser included offense, or to a lesser degree of the charged offense, if both the court and the prosecutor consent. Ohio's rule requires the agreement behind a negotiated plea to be stated on the record in open court. [2][3]

New Mexico's cited statute addresses a complaint or information alleging a violation of the Boating While Intoxicated Act's specified offense provision. It requires a guilty plea resolving the charges to include a plea to a violation of one of that provision's subsections, and bars disposition by a guilty plea to another charge if the statutory test discloses the specified blood- or breath-alcohol concentration. The quoted text supplies the exact provision and test condition. [4]

Who decides whether a plea bargain goes forward?

Florida's rule provides that, except as otherwise provided by the rules, pleas to a charge must be entered by the defendant in open court. It also provides that a defendant is not called on to plead until having had a reasonable time to deliberate. [5][6]

In federal court, the judge may accept an agreement that dismisses charges or sets a specific sentence. The judge may also reject it, or wait to decide until after reviewing the presentence report. If the judge rejects that kind of agreement, the judge must give the defendant an opportunity to withdraw the plea. [9]

Where a federal agreement is of the sentencing-recommendation type, the recommendation does not bind the court. The judge must tell the defendant that there is no right to withdraw the plea if the judge does not follow the recommendation. [9]

Before accepting a guilty or no contest plea, the federal rule requires the court to address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises other than promises in a plea agreement. Separately, the cited Ohio passage states that in felony cases the court may refuse to accept a guilty or no contest plea; that passage is not a statement about voluntariness. [9][7]

Can what is said during plea talks be used against the defendant later?

In federal court, Rule 410 generally bars using statements made during plea discussions with a prosecuting attorney against the defendant when the talks did not result in a guilty plea, or resulted in one later withdrawn. The rule permits statements to be considered together when fairness requires it after another statement from the same plea or discussions is introduced. It also permits use in a criminal proceeding for perjury or false statement when the statement was made under oath, on the record, and with counsel present. [10]

Can a plea entered under a plea bargain be withdrawn?

In federal court, a defendant may withdraw a guilty or no contest plea for any reason before the court accepts it. After acceptance but before sentencing, withdrawal is allowed if the court rejects a plea agreement under Rule 11(c)(5), or the defendant shows a fair and just reason. After sentencing, the plea cannot be withdrawn and may be set aside only on direct appeal or collateral attack. Florida's rule allows withdrawal before sentence in the court's discretion, and requires it on good cause. [9][8]

What rights does a defendant give up by pleading under a plea bargain?

Before accepting a guilty or no contest plea in federal court, the judge must make sure the defendant understands that the plea waives trial rights. These include the right to a jury trial and the right to confront witnesses. The judge must also explain the terms of any provision in the agreement that waives the right to appeal or to collaterally attack the sentence. [9]