Tuesday, May 6, 2014

What does a defendant need to know before agreeing to a plea deal?

     Most criminal cases - close to 90%  at the state and federal level - resolve by way of a plea agreement or "plea bargain."  Typically the prosecution gives up the right to seek conviction on more charges, or mores serious charges, or a more severe sentence.  In exchange, the defendant gives up a host of procedural rights including as discussed below, and subjects himself or herself to the consequences.

     Specifically, before accepting any plea agreement between the prosecution and defense, the judge is required to make sure -

1.  That the defendant understands the nature of the charge and the elements of the offense to which he/she is pleading and the effect of his/her plea;

2.  That the plea is voluntary on defendant's part and is not the result of undue influence or coercion on the part of anyone;

3.  That the defendant understands the right to trial by jury (if applicable) and that he waives his right to trial by jury on all issues;

4.  That the defendant understands the possible penalty or penalties;

5.  That the defendant understands that the court will not be bound by any representations made to the defendant by anyone concerning the penalty to be imposed or the granting or the denial of probation, unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report, if any;

6.  That there is a factual basis for the plea. If the plea is entered as a result of a plea agreement, the court shall explain to the defendant, and satisfy itself that the defendant understands, the basis for the plea agreement, and the defendant may then waive the establishment of a factual basis for the particular charge to which he pleads; and

7.  That in class 1 felonies (i.e. the most serious level felony), or where the plea of guilty is to a lesser included offense, a written consent shall have been filed with the court by the district attorney.

    Defendants must understand their rights and what they give up before agreeing to any plea deal.  Good defense lawyers, like Sanderson Law, P.C., 303-444-8846, can help.

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