How do I know whether to take the deal?

One of the reasons why plea bargaining is so common is that both sides often have something to gain when cases are disposed of by guilty pleas. There is no way to know for sure, however, when the best time to take the deal is—when to hold off, when to stall, and when to just accept the sentence and move on. Plea negotiations are something of a poker game.

General wisdom suggests that it is often beneficial for defendants to hold off accepting the first offers. Underlying this theory is the idea that the more time that passes after the alleged offense, the weaker the state’s case may become. Witnesses disappear and forget, and physical evidence may be lost. And all that time, the defense has a chance to build a better case. So, for some cases, the longer the defendant can hold out, the better the deal will be.

Some prosecutors have a hard and fast policy, however, of escalating their demands if their first offer isn’t accepted. Many times, prosecutors who play such hardball have reputations that precede them, and defense lawyers know to accept their first offers if it’s reasonably clear that the defendant would lose the case if it went to trial. Also, even if delays are beneficial to the defense, waiting is usually easier for those defendants who are out on bail than it is for in-custody defendants.

Because of these variables, defendants should consult with their lawyers or a legal coach about strategies of waiting versus taking the deal or going to trial.

In some instances, such as when a prosecutor’s deal is no better than the likely sentence and the defendant has a strong defense, the defendant may want to go to trial.

by: Paul Bergman