Should I Take a Plea Bargain?

Attorney Marsh
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The decision whether or not to take a plea bargain in a criminal case is ultimately up to you, as the Defendant. One question that I hear over and over again from people I bump into and clients I have is – should I take a plea bargain? It is important to remember that in Texas you have no constitutional right to a plea bargain. Plea bargaining has developed as a way to resolved cases without every case needing to go to trial. Usually I advise my clients that there are three choices that they have to make, and these choices are theirs alone:

  1. Whether or not to take a plea agreement?
  2. Whether you want a trial by judge or trial by jury?
  3. Whether or not you want to testify at your trial?

What is a plea bargain or plea agreement?

A plea bargain or plea agreement is an agreement between you and the State of Texas to resolve your criminal charge(s). Resolving your criminal charges may mean that you plead guilty to the offense and agree to an amount of jail time and/or a fine. For example, a first time DWI charge with a .10 BAC can land you up to 180 days in jail, a $2,000 fine, or both. A plea agreement is usually negotiated between your defense attorney and the prosecutor representing the state. Your plea agreement may include something like: a guilty plea to the DWI, 2 years probation, a fine of $1,000 plus Court costs. Your defense attorney will request the criminal discovery from the state for this DWI charge. After reviewing the discovery, your attorney will be able to advise you on the strengths and weaknesses of your case. In addition, your attorney will also have the chance to speak with the prosecutor and point out flaws, holes, and weaknesses in the prosecutor’s case against you. This can pay off big time and result in a dismissal or a plea bargain to a lesser included offense. In a previous post I talked about careful discovery review and how it pays off big time for my clients. Once a plea agreement is negotiated between you (through your defense attorney) and the state, you will have to fill out paperwork to waive certain constitutional rights in exchange for the plea agreement.

Benefits and Consequences of a Plea Agreement

A plea agreement comes with many benefits and consequences. In this short post I can’t list them all. However, I can let you know there are some major advantages and drawbacks to a plea agreement. First, let’s talk about the advantages to a plea bargain. A plea bargain can remove a great deal of the uncertainty you face at trial. If you are charged with a third degree felony for example, you are facing 2-10 years in prison. A jury could find you guilty and sentence you to the full 10 years. Although a Judge does not have to accept your plea agreement, the Judge 90% of the time will accept it. The fear of the unknown is great for a lot of my clients. Another benefit of the plea agreement is that your case may be strong and have valid defenses. In that situation the prosecutor may agree to dismiss the charge against you or charge you with a lesser included offense. An example would be that you’re charged with Possession of a Controlled Substance (1gram of cocaine) which is a State Jail Felony. If the case against you has some flaws, you might be offered a plea to Attempted Possession of a Controlled Substance which is a Class A Misdemeanor. The benefit here would be that a guilty plea wouldn’t make you a convicted felon! However, there are many collateral consequences to a guilty plea, and a guilty plea is the same as a conviction.

Disadvantages of a Plea Bargain

There are also many disadvantages to a plea bargain. Depending on the type of plea bargain, if it includes a guilty plea, you will have that conviction on your record for LIFE. You are giving up your constitutional rights under a plea agreement. This means:

  1. Giving up your right to a jury/bench trial.
  2. Giving up your right to confront your accuser and call witnesses in your favor.
  3. Giving up your right to appeal.

Giving up these constitutional rights may be too much for some people. Some clients demand their day in Court, which is fine by me! Like I said earlier, the decision on whether or not to take a plea or go to trial is MY CLIENT’S ALONE. All I can do is advise him/her on the strengths, weaknesses, and potential outcomes of their case. However, it is very important to keep in mind that trial preparation is expensive and time consuming for me and my clients. Jury trials don’t prepare themselves. Many times I’ve heard people in the Courthouse say “I want a jury trial but I can’t afford to pay for a jury trial.” If this is the case, you may explore getting a Court Appointed Lawyer.

Summary

Plea bargaining and plea agreements have many advantages and disadvantages. They generally move cases along efficiently and minimize risk to clients. It’s very important that you talk to a criminal defense attorney to advise you about your rights, the consequences of a plea, and working out a plea bargain on your behalf. Often times you may receive a better plea offer than what you risk receiving at trial. A plea bargain isn’t a way for your attorney to sell you short. It may be the best possible outcome for your case, depending on the facts. It comes down to the fear of the known versus the fear of the unknown. Don’t go into this alone and without backup. Protect your rights now while also protecting your future.