There’s nothing to prevent you from approaching the prosecutor at any time to see if he or she is willing to make a deal to avoid a trial. Sometimes it’s easier to trigger negotiations if you have asked for a jury trial because prosecutors and judges are interested in avoiding the extra time and expense of a jury trial.
Where do you do it? Any visitor to traffic may be familiar with the site of lawyers huddling in a corner of the hallway outside the courtroom, negotiating and settling a case. These negotiations may also occur at a formal “pretrial” or “settlement” conference in the judge’s chambers, informally by phone, or even perhaps by email. Here are some things to keep in mind regarding negotiations and settlements.
What to shoot for
It is seldom realistic to assume that you can get your case dismissed. Options that are more realistic often include:
- Allowing you to plead guilty to a less-serious offense than you are charged with. For example, in some states you could accept “simple” speeding rather than exceeding the speed limit by more than 30 mph.
- Dismissal of one charge against you, in exchange for a guilty plea to another. For example, dismissing the charge that you made an unsafe lane change and failed to stop at a signal in exchange for your guilty plea to a speeding charge.
- Agreement that your sentence will not involve a high fine or license suspension. For example, in a situation where you can be fined $400 for deliberately running a red light and have your license suspended, you can bargain for an agreement to fine you $100 with no suspension.
- Approval of your attending traffic school (meaning the offense won’t go on your record) where this otherwise wouldn’t be an option.
Tips for Negotiating
- Be wary about agreeing to plead guilty to several offenses in exchange for the promise of a lesser fine. If you are entitled to a jury trial, you usually have more bargaining power than this. If the prosecutor won’t dismiss at least one charge in exchange for pleading guilty (or nolo contendere), you may want to go to trial.
- Don't let yourself be bullied by a prosecutor into accepting a poor “take it or forget it” offer. No matter how much the prosecutor tries to intimidate you, if the prosecutor makes one offer, he or she will often be willing to eventually sweeten it up a little if you say “no.”
- Never lay everything on the table by detailing your strategy to the prosecutor. If negotiations fail, you will have exposed your strategy to the opposition. Better to simply say you believe you can present a very strong case as to why you are not guilty. If the prosecution’s case really is weak, the prosecutor will spot it and be more willing to negotiate.
- Never make a deal on trial day until you see the officer. If the police officer isn’t present, the judge will probably dismiss the case. Knowing that the officer isn’t going to make it, the prosecutor may propose a generous settlement immediately before court. Before going further, you should just ask the prosecutor if the officer is going to be present. Or, you could ask for a few minutes to think about any deal and, if the cop still hasn’t appeared, just say no
- Never—repeat—never admit guilt to a prosecutor or police official before a deal is formalized. If you do, your admission can be used against you in court.
Example: You talk to a prosecutor who says, “Come on now—just between us—you were going 65 mph, weren’t you?” Never reply, “Sure, but I think a jury will let me off.” If you fail to make a deal, the prosecutor can simply go on the stand and testify to what you said. Far better to respond, “I don’t think you can prove that” and very briefly explain why. (But again, don’t reveal the details of your defense strategy.)
How a Deal Is Made
If you and the prosecutor orally agree to a compromise settlement, the two of you will then appear before the judge. The prosecutor will request permission to dismiss or reduce one or more charges against you “in the interests of justice” and tell the judge that you intend to plead guilty to the reduced charge. Depending on your agreement, sometimes the prosecutor will go on to recommend a particular punishment.
Although the judge does not have to agree to the prosecutor’s proposal to dismiss or reduce the charges, or to impose the agreed punishment, he or she almost always will. If for some reason the judge doesn’t, ask to withdraw your plea and proceed to trial.