Negotiating With the Prosecutor Before the Arraignment

Some criminal defendants are better off having their lawyer negotiate with the district attorney early in their case to minimize the consequences.

By , J.D. UCLA School of Law
Updated 5/17/2023

Defendants who believe the case against them is very weak often ask whether it's possible to negotiate a dismissal before the arraignment. Unfortunately, this possibility generally exists only for defendants who hire private attorneys prior to arraignment.

Defendants who are represented by court-appointed counsel (sometimes referred to as public defenders) often don't even have counsel appointed until the time of arraignment. And a self-represented defendant should not risk additional legal difficulties by discussing the case with a prosecutor before the arraignment (assuming that a prosecutor would agree to meet with the defendant in the first place).

Negotiating a Dismissal Before the Arraignment

Defendants who hire private counsel before arraignment have a chance to derail the case for several reasons.

Expose a Weak Case

In most parts of the country, intake prosecutors (not the police) are supposed to analyze cases to make sure that there is evidence of guilt and that prosecution is in the interests of justice. Frequently, however, the caseload is so heavy that reviews are cursory, and weak cases sometimes slip into the pipeline. If an attorney who is well known to the courtroom prosecutor can convince that prosecutor of the weaknesses in the case, the case may get dismissed.

Not Yet Invested in the Case

Before arraignment, no one in the prosecutor's office has invested a lot of time or money in the case. With less invested, it's easier to let a weak case go.

Overcrowded Court Dockets

Especially in urban areas, courtroom dockets (schedules) are crowded. By quickly disposing of weak cases, prosecutors can devote the little time they have to more serious cases. And disposing of iffy cases early on spares the courtroom prosecutor of the embarrassment of showing up in court with weak cases.

For all these reasons, if defense counsel can point out weaknesses that the intake prosecutor did not consider, or convince the prosecutor that further proceedings would not be in the interests of justice, a pre-arraignment meeting between the defendant's attorney and the prosecutor may result in the case being derailed before arraignment.

Example of Negotiating a Dismissal With the Prosecutor Before Arraignment

Redd Emption was arrested for carrying a concealed weapon. Rushing to make an airplane, Redd forgot that the gun he was supposed to leave at his house was still in his backpack. He was arrested when the airport metal detector revealed the gun. Redd has no prior arrests. The only reason that he had the gun in the first place is that a series of robberies had taken place in his apartment building, and his father had loaned him the gun for protection.

Redd is out on bail and is scheduled for arraignment in a week. Thinking that his arrest is a misunderstanding, Redd is uncertain about whether to hire an attorney. However, a private attorney may be able to get the case dismissed before the arraignment. Redd's attorney may be able to contact the arraignment prosecutor to seek a mutually agreeable outcome. Redd's attorney can point out information that the intake prosecutor may not have been aware of—Redd didn't own the gun; he had borrowed it for protection, and inadvertently had it in his backpack.

Though Redd is technically guilty as charged, these factors may convince the prosecutor that trying Redd is not in the interests of justice. As a result, the prosecutor may agree to dismiss the case or offer Redd diversion (that is, agree to temporarily not file the charges and end the case permanently if Redd stays out of trouble for a period of time).

Consult a Lawyer

If you've been arrested or charged with a crime, it's almost always best to consult with a criminal defense attorney before making decisions relating to your case. You can learn more about criminal defense attorneys, how to get one, and when you need one in our FAQ article on Criminal Defense Attorneys.

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