Do I need a lawyer to get a good plea deal?

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Question:

Do I need a lawyer to get a good deal? Do lawyers get better plea bargains?

Answer:

Most of the time, the answer is “yes.” To get a good deal, a defense lawyer may have to lobby the district attorney. And just as a child lobbying a parent for a later bedtime must curry favor, so too must defense lawyers; it’s critical to make sure at least that they don’t irritate the D.A. in charge. (See I’ve heard that prosecutors offer standard deals for certain charges. Should I still hire a lawyer?)

Some suggest, among various other strategies, approaching the D.A. very early on, before any affirmative steps are taken to further the case, and trying to appeal to the D.A.’s sense of justice and fairness. Once prosecutors start working a case, they may become more entrenched in their position. It may then become more difficult to persuade them to drop or reduce certain charges. Further, when lobbying the D.A., wise defense attorneys often start at the bottom of the ladder in the prosecutor’s office. If a less experienced D.A. says no, a defense lawyer can approach a supervisor. But once the supervising lawyer says no, the defense may be out of luck.

These tactics suggest how cautiously defense lawyers proceed with plea negotiations. And, if defense lawyers have to be careful about how they negotiate a deal, self-represented defendants must be even more careful.

First, there are traps for the unwary pro per. For instance, though technically there are rules of evidence that prevent the use of information discussed in the course of a plea bargain from being used in trial (see Federal Rule of Criminal Procedure 11(e)(6)), the prosecution may find ways around this. The prosecution may, for instance, look for independent evidence that they find from leads given away by the defendant during these negotiations.

Second, defense lawyers may be able to negotiate more effectively because they may have an emotional distance from the case that the defendant lacks.

Third, it is quite likely that the prose­cutor will have a bias against defendants representing themselves—or at least a preference for working with fellow lawyers—and will not offer the defendant the same deal he would give a defense lawyer. In one study, prosecutors flatly admitted personal prejudice against unrepresented defendants. (See “Plea Bargaining: Critical Issues and Common Practices,” U.S. Department of Justice, July 1985 at 43.) In misdemeanor cases in Texas, the study reported, unrepresented defendants discuss their cases directly with the prosecutors, “who generally advise them to plead guilty to avoid being ‘creamed’ if they go to trial and in order to get probation or diversion right away.” One prosecutor further admitted that in a weak case, “If there is a defense attorney, I’ll dismiss it … If there is no attorney, I’ll try to get the defendant to plead guilty.”

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