On Plea Bargaining

Clients often ask whether they should plea bargain their case. Austin DWI Lawyer, Jamie Spencer, recently posted about plea bargaining in the context of DWI defense practice. Since so many prospective clients ask about the process I thought I'd post some answers to commonly asked questions regarding plea bargaining in Texas state court.

In a plea bargain the accused person agrees to enter a plea of guilty, or no contest, in exchange for a punishment recommendation from the the prosecuting attorney. The prosecution may agree to dismiss or reduce certain charges if the defendant agrees to accept a plea bargain. Much of the time, plea bargains involve a deal that reduces punishment, or the risk of greater punishment to the person accused. Furthermore, the accused can avoid the time and cost of defending themselves and the publicity a trial could involve. The prosecution saves the time and expenses of a trial, while both sides are spared the uncertainty of trial.

The judge is not bound to follow the prosecution's recommendation, however. In other words, the judge reserves the right to reject the plea bargain if the judge feels uncomfortable with the deal, or if the judge feels the accused has not voluntarily waived their rights. What are the rights the accused waives in exchange for a plea deal? The big three are the person's right to a jury trial, the right to confront and cross-examine witnesses, and the right to remain silent.

When the right to a jury trial is exercised by the accused, it forces the State to prove each element of the the criminal allegation beyond a reasonable doubt. If the State is not able to unanimously convince a jury of 6 (misdemeanor) or a jury of 12 (felony) that all the elements have been proven, the accused person is legally entitled to be acquitted of the charges. An important right, to say the least.

When the right to confront and cross-examine one's accusers is exercised, the evidence presented by the State is tested through questioning by the accused or their criminal defense lawyer. Weaknesses in the evidence can be exposed through the exercise of this right. Under the right set of circumstances the State's evidence can be discredited to such a degree that it is unable to meet the burden of proof - beyond a reasonable doubt. Again, this results in an acquittal for the person charged.

When the right to remain silent is exercised by the accused, the State must prove it's case without the help of the person charged. In other words, the State cannot call the person accused to the witness stand and force them to risk self-incrimination. The person can remain totally silent during the trial and that cannot be taken as a circumstance of guilt against them. Nor can the prosecuting attorney comment upon the person's silence.

Before a judge can accept a plea bargain recommendation, the record of the case must show the person voluntarily and knowingly waived their rights and plead guilty to the charge. Texas courts are required to take proof of this to ensure the waivers on the record reflect a voluntary and knowing waiver of the big three.

Critics of the system claim the plea bargain system can put pressure on defendants to plead to crimes they know they did not commit. Furthermore, they claim the outcome of a plea bargain may depend strongly on the negotiating skills and personal demeanor of the criminal defense lawyer. Critics also claim the system encourages prosecutors to overcharge at the start of a case which leads to caseload pressures or unusually severe penalties for the accused. Lastly, the plea bargain may itself carry unintended ramifications. See here, here, here, and here for posts on the collateral consequences of pleading guilty.