Plea Bargaining: Areas of Negotiation

Plea bargaining typically happens in the prosecutor's law office or over a telephone call. Judges only get involved in very rare circumstances. Plea bargains that the judge accepts are then placed on the record in open court. The defendant must be present.

Many criminal trials in the United States end with plea bargains instead of jury trials. Most criminal proceedings involve plea bargaining due to huge caseloads. The criminal justice system offers plea deals because there are benefits for both the prosecution and the defendant. For example, a plea deal provides certainty to both sides in a criminal case.

This article will cover the different areas of negotiation involved in plea bargaining and the logistics involved.

Plea Negotiations: Overview

Plea bargaining involves three areas of negotiation, described below:

  • Charge bargaining (reduced charges): This is a common and widely known form of plea. This negotiated plea involves the specific criminal charges that the defendant will face at trial (perhaps a misdemeanor instead of a felony). Usually, a prosecutor will dismiss the other charges in return for a plea of "guilty" to a lesser charge. For example, a prosecutor dismisses charges for second-degree murder. In return, the prosecutor may accept a guilty plea for manslaughter.
  • Sentence bargaining (reduced sentence): Sentence bargaining involves the agreement to plead guilty to the stated charge. In return, the defendant receives a lesser sentence. It saves the prosecution the necessity of going through trial and proving its case. A lighter sentence encourages some defendants to agree to a plea deal.
  • Fact bargaining (reduced facts): The least used negotiation involves admitting certain facts. This means stipulating the truth and existence of provable facts, thereby eliminating the need for the prosecutor to prove them. In return, the criminal defendant receives an agreement not to introduce certain other facts into evidence.

Plea bargaining requires defendants to waive some rights. Specifically, defendants voluntarily waive their rights protected by the Fifth and Sixth Amendments. These include the right to a jury trial, the right against self-incrimination, and the right to confront witnesses.

The Plea Bargaining Process

A prosecuting attorney has no authority to force a court to accept a plea agreement entered into by the parties. Prosecutors may only recommend to the court the acceptance of a plea arrangement. The court will usually ensure that the above three components are satisfied. After that, they will usually accept the recommendation of the prosecution.

The attorney must prepare well to negotiate a criminal plea agreement. The attorney should know:

Plea bargaining is more complex than it may first appear.

Things To Consider Before Accepting a Plea Bargain

Never rush to accept or reject a charge, lenient sentence, or fact plea bargain. Make sure you consult with your defense attorney first.

Pleading guilty to a lesser charge could still result in a long-term prison sentence. This depends on the circumstances and whether your state has a Three Strikes Law.

Depending on your case, a sentence-based plea bargain may also not be the right choice for you. Granted, you may spend less time in prison; however, that agreement could involve registration as a sex offender for the rest of your life. You could avoid this fate if you're found not guilty at trial.

Fact plea bargains come with their consequences as well. Accepting a fact plea bargain could lock you into admitting certain, seemingly irrelevant facts at the start of your case. These facts may become more relevant as the evidence in the case develops.

You don't have to accept the prosecution's first offer. Remember the potential consequences, and remember that you and your attorney can negotiate the terms of a plea bargain.

Get Legal Help With Your Plea Bargaining Questions

Plea bargaining can involve various areas of negotiation. In general, it is a complicated process. Get in contact with a local criminal defense attorney to get legal advice. Whether you want to discuss your constitutional rights, potential jail time, plea bargaining information, or anything else, a defense lawyer will be happy to answer your questions.

Was this helpful?

Can I Solve This on My Own or Do I Need an Attorney?

  • Complex criminal defense situations usually require a lawyer
  • Defense attorneys can help protect your rights
  • A lawyer can seek to reduce or eliminate criminal penalties

Get tailored advice and ask your legal questions. Many attorneys offer free consultations.


If you need an attorney, find one right now.