What is a plea bargain?

A plea bargain is made after an indictment is filed, sometimes before the evidence is heard and sometimes mid-trial. The defendant admits the facts of the indictment, usually after it is amended, and in return the prosecution agrees to drop counts, replace a serious section with a lighter one, agree to a specific sentence or sentencing range, or leave sentencing to the court's discretion. The agreement is presented to the court openly.

The court is not a party to the agreement and is not obliged to honour it. Under Supreme Court case law, the judge examines whether the agreement strikes the right balance between the benefit to the defendant and the public interest. In most cases the court honours it, but it may depart from it. In serious sex and violence offences, the prosecution must give the victim an opportunity to state a position before the agreement is signed (Crime Victims' Rights Law, section 17).

What to weigh: a guilty plea is final, and a conviction is a conviction, even if the sentence is light. So first the evidence is examined (section 74), along with preliminary arguments and the prospects of acquittal, and only then is a bargain considered. A precise agreement also covers details: a non-conviction outcome where the law allows, community service instead of prison, compensation known in advance.

What a lawyer does: negotiates with the prosecutor from a position of knowing the evidence, drafts the agreed facts so they do not go beyond what actually happened, prepares you for the judge's questions, and argues on sentence even where there is agreement.

Source in law: Criminal Procedure Law [Consolidated Version], 5742-1982; Crime Victims' Rights Law, 5761-2001, section 17; Supreme Court case law on plea bargains