When Should You Take a Plea Bargain?

Knowing when or if you should take a plea bargain depends upon whether the proposed terms are actually a bargain for you when compared with all possible outcomes in the criminal case. To ensure the best terms are reached for your desired outcome, you should never accept a plea deal until an experienced defense attorney has been directly involved with the plea bargain process.

Analysis Before Taking a Plea

When deciding whether to take a plea bargain or go to trial, listen carefully to the advice and analysis of your lawyer. If you do not yet have a lawyer or even if you think you cannot afford one, take the time to at least get an initial consultation before deciding how to move forward.

It’s understandable to want to speed-up the process of resolving your legal troubles, especially if you’re led to believe you are getting a deal in the process. But a defendant’s ability to plea bargain successfully is controlled by their knowledge of the state’s case against them in contrast to the strength of their own case and the defenses that are available. 

Therefore, you are strongly urged to consult with a qualified defense attorney before taking a plea. Remember, you have the upper hand, because you are presumed innocent until the state can prove that you are guilty beyond a reasonable doubt!

The only people who are in the position to know whether your case should plead or go to trial are the experienced defense attorneys who regularly defend cases like yours in court.

A skilled defense lawyer who has represented defendants in similar situations knows how to spot problems with the state’s evidence against you. This will inform how negotiations proceed and your lawyer can be much stronger in advocating for reductions. 

Plea Bargain Process in Massachusetts Criminal Courts

By definition, a plea bargain is a voluntary agreement between a defendant and the prosecuting attorney. The agreement is best and often negotiated between the defendant’s lawyer and the prosecutor’s office, with the end goal that the defendant agrees to plead guilty in exchange for receiving a lesser charge, dropped charges and/or a reduced sentence.

If you have been charged with a crime in Massachusetts, you, your criminal attorney and the prosecution can try to work out a plea deal at any time in the process, so long as a plea bargain is reached before a jury verdict.

Both sides will meet at a scheduled court conference to discuss the initial strengths and weaknesses of each side’s case, as well as the defendant’s personal history. Depending upon how things shake out and what you and your lawyer agreed to previously; your defense attorney may reach a settlement for a plea at this meeting. However, nothing is finalized unless and until you sign the plea before a judge.

4 Types of Plea Bargains

There are four types of plea bargains most often used in Massachusetts criminal courts:

  • Count Bargaining occurs when the district attorney agrees to reduce the number of charges brought against the defendant.
  • Charge Bargaining is when the prosecutor agrees to amend the main charge to a less serious offense. For example, a felony assault charge is changed to a misdemeanor assault.
  • A Sentence Bargain operates on the recommended leniency by the prosecutor to the sentencing judge.
  • Hire an experienced lawyer who would reject the prosecutor’s proposed deal then make a pitch on your behalf to sway the judge to make a favorable disposition on your case.

Your Massachusetts defense lawyer might negotiate for one or any combination of these 4 types of plea bargains. Bear in mind however, that offering a plea bargain is at the prosecutor’s discretion.

Once both sides agree, the prosecutor writes up the agreement and submits it to the judge for approval.

Related Q&A: How often do judges reject plea deals?

The majority of plea agreements receive approval from the courts. Sentencing bargains are more susceptible to rejection because judges have full autonomy to hand down sentences. If the judge rejects the lighter plea deal sentence, your agreement should have a continuance clause so you and your defense attorney can discuss other options.

What Happens When You Accept a Plea Bargain?

An approved plea agreement is a binding contract between you and the prosecutor. If either party fails to live up to his or her end of the bargain, the agreement can be terminated.

For example, if your plea deal requires a period of drug-free probation and you test positive for alcohol or drugs, your probation officer can report you for a violation of probation.

If the judge presiding over the probation hearing determines that you were in violation, s/he will have a number of options to pursue, one of which is revoking your probation plea deal.

Related Article:  What Happens If I Violate My Probation?

In some cases, a good defense lawyer can get charges completely dismissed in exchange for something from the defendant. This could involve victim restitution, providing important evidence to the state, or simply serving community service. 

Problems with Plea Bargaining

The prosecutor assigned to your case also has to follow the terms of the signed plea bargain. While not typical, a prosecutor might violate the terms of the plea agreement. One way this happens is when related charges are later filed against you, even after the prosecutor has promised not to do so as part of the agreement.

Furthermore, if the contract for your plea deal is not carefully drawn up with your best interests represented, you could end up surrendering more of your judicial rights than is prudent or necessary.

If this occurs, you might try to appeal the agreement which amounts to appealing a conviction —a very difficult and costly process.

Other problems concerning plea bargaining are:

  • Convictions – You will likely have a conviction on your permanent records.
  • If you take a felony plea deal, there could be far-reaching consequences to your life such as diminished opportunities and difficulty obtaining jobs and housing.
  • A standard plea deal requires you to forfeit your judicial and constitutional rights to:
    • Remain silent and not self-incriminate
    • Be tried by a jury of your peers, in which the prosecutor will have to prove your guilt beyond a reasonable doubt.
    • Clear your name publicly through winning a not-guilty verdict.
    • Examine and challenge all the evidence the state has against you
    • Confront your adversaries in court, and
    • Cross-examine / question any witnesses.
    • An “automatic appeal” – If you lose at trial, the appeals process is a straight path forward. However, once you sign a plea deal, reversing it is exceedingly difficult because courts see it as an agreement you entered into voluntarily.

DUI and felony cases should always be examined thoroughly before negotiating a possible plea. If there is strong evidence that exonerates you of wrongdoing, you should seek the representation of a defense attorney who has ample experience taking OUI and felony cases to trial, and winning.

Does a plea deal count as a conviction?

Typically, yes. A defendant agrees to plead guilty to a particular offense in exchange for a charge or sentence reduction. However, if your Massachusetts defense attorney arranges a 24D DUI plea, your case status would not technically be considered a conviction.

If you’re looking for the best possible outcome of your case you need to research the best criminal defense lawyer for your legal situation. Ask questions about a prospective lawyer’s previous results and experience helping clients obtain favorable results. Call us today for a free consultation to review your case, we will be happy to answer your questions about our experience.


Attorney Gregory Oberhauser

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Gregory Oberhauser is the ONLY attorney in Massachusetts to be distinguished as an ACS-CHAL Forensic Lawyer-Scientist by the American Chemical Society!

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