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The Difference Between Plea Bargain and Trial Bargain

When thinking of the criminal justice system, no doubt an image of a trial complete with a judge and jury comes to mind. Despite this prevalent assumption as to how the criminal justice system functions and labels people as guilty, most people convicted of crimes are actually done so by their own accord.


In fact, nine defendants out of ten who are convicted will willingly plead guilty based on plea bargains their defense attorneys have created before a trial prosecution can ever begin.


The popularity of plea bargaining has been on the rise due to the unique opportunities it gives defendants, and the troubles it helps them avoid. When a defendant pleads not guilty, they can feel as if they are dragged through an unforgiving trial process that is leveraged to the prosecution’s advantage from the get-go. If they cannot overcome that imbalanced battlefield, they could be slammed with harsh penalties, such as standardized sentencing guidelines and serving mandatory minimums in prison, which are two penalties that may have been sidestepped if a plea bargain was worked out first.

When all things are considered, it seems like the criminal justice system is losing interest in actually giving everyone their right to a fair trial. Instead, it wants to do its best to coerce people into using and accepting plea bargains. But why? Isn’t everyone innocent until proven guilty?

Streamlining and Cost Reduction

The government will collect its dues in whatever form it can and without fail. By avoiding court trials that can go on for weeks or more, the justice system can claim that it is helping save everyone time and the taxpayers’ dollars. Guilty plea agreements can take a fraction of the time to complete and everything is done before you know it began. This faster system is touted as being more efficient and better for the American people. There are so many arrests and charges filed every single day in this country – don’t you want to know that the “criminals” are being handled in a timely manner? That’s the argument coming from the courts, anyway.

Plea Bargains: Unconstitutional or Just Effective?

With plea bargains being offered up on a silver platter to discourage defendants from accepting their right to a trial, can they be seen as a breach to the Constitution? Furthermore, if the prosecution would be fine with minimum sentencing in a plea bargain, are the harsher trial penalties they use when a verdict is necessary a form of retaliation, a legal vendetta for taking up their valuable time? Why should the existence of a trial suddenly raise the penalties someone faces when convicted?

The Supreme Court disputes that guilty plea agreements can be found unconstitutional under certain circumstances. In Brady v. United States, the Supreme Court held that his plea was voluntary, despite Brady’s intention to avoid the death penalty. The Court noted that there was “no evidence that Brady was so gripped by fear of death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty”. Yet it seems unreasonable to think that anyone faced with capital punishment would not take a plea “deal”.

Trial Bargains: All-Or-Nothing Criminal Justice

When a plea bargain is not optimal, there is another option that is relatively unexplored in the legal scene: trial bargains. The difference between a plea bargain and a trial bargain is subtle yet impactful – in plea bargaining, the defendant agrees to waive all their trial rights in exchange for leniency; in a trial bargain, the defendant will waive only a limited amount of their trial rights in exchange for limited leniency. In simpler terms, the standard trial turns into a limited trial, which may appeal to prosecutors more so than a standard and possibly lengthy trial.

Techniques used in trial bargaining to appeal to the prosecution:

  • Imposing time limits on the trial
  • Constricting time allotted for opening and closing arguments, and direct or cross-examinations
  • Eliminating or limiting the use of witnesses
  • Stipulating a fact trial, or simplifying complicated actions that cannot be contested with a single issue of mens rea

A trial may also be bargained through waiving confrontation techniques, which can include:

  • Using fact stipulation to render a witness unnecessary
  • Allowing the prosecution to use recorded statements
  • Proceeding by deposition

A final effort to achieve trial bargaining may be to either waive or enforce the privilege to testify on one’s behalf. If the prosecutor sees a benefit in being able to cross-examine a defendant who would otherwise not testify, they may agree to the trial bargaining.

Plea and Trial Bargaining With An Ace Up Your Sleeve

Trial bargaining is not entirely new and yet only a few precedents exist on record. Italy, for example, offers a one-third sentencing reduction for any defendant that agrees to an abbreviated trial. Here in the States, courts in Pittsburg and the Bronx started to rely on fact stipulations and jury waivers in the 80’s but has since become rare again. Plea bargaining, on the other hand, has arguably become too common as the criminal justice system leans on it like a crutch to expedite and secure convictions, even in cases where the defendant knows they are innocent but simply cannot bear to go through a full trial.

With all the differences between plea and trial bargains explained, it is time to look at their most important similarity: neither option will benefit the defendant if they do not proceed with the help of professionally-qualified mediator. To achieve a beneficial bargain of any kind, extensive and intricate negotiations with prosecutors must be held, and all outcomes must be weighed and reweighed with all facts, big and small, considered.

Contact the Law Office of David R. Fischer Today!

At the Law Office of David R. Fischer, our lead attorney, Mr. Fischer, stands head-and-shoulders above most other lawyers when it comes to securing plea and trial bargains, having earned a Master’s Degree in Dispute Resolution from Pepperdine University’s College of Law. He also clerked for a full-time settlement judge in the Los Angeles Superior Court, allowing him to gain unique and indispensable insights and skills regarding the complex nature of dispute resolution and negotiating fair outcomes. If you need help with a criminal defense case and want to explore your options with plea or trial bargaining, you cannot afford to work with anyone but Las Vegas Criminal Defense Attorney David R. Fischer and our firm. Schedule your appointment today.

Note to interested parties: A recent issue of the National Association of Criminal Defense Lawyers (NACDL) magazine, The Champion, published an article about plea bargains and trial bargains. It is titled “Bargaining for More Trials” and written by Gregory M. Gilchrist. If you would like to read more about these unique aspects of the criminal justice system, you can click here to link to the NACDL website, where members may view the article in full.

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