Arizona Trial Attorney Gives His Thoughts On The Million Dollar Question.

“Should I take the deal or not take the deal?” that is the ultimate question that is asked by every defendant in each criminal case.  I get this question from potential clients and existing clients because 95% of criminal cases ultimately get resolved by a plea agreement and almost 100% of the time, a prosecutor will make a plea offer to resolve each case.

A lawyer needs to know all the facts of the case before they can answer this question for a client.  In all criminal cases there are common factors a defense attorney uses to evaluate the benefit of a government's plea offer and the strengths and weaknesses of a case before giving an opinion on the quality of a government plea offer.  The following are some of the most important factors for consideration.

Range of Sentence And Likely Sentence:

“What Am I Facing?” and “What Am I Likely To Get?” are two different questions but the answers are probably the most important factors in evaluating whether a plea offer is favorable or not.

A plea offer is usually going to do two things, it is either going to guarantee or limit a particular sentence to the defendant or it might be an agreement to dismiss some criminal charges that may result in a reduced sentence if they agree to not take the case to trial.

“What Am I Facing?” and “What Am I Likely To Get?” are two different questions but the answers are probably the most important factors in evaluating whether a plea offer is favorable.

What the sentencing range is for a crime is pretty straightforward. Each crime is classified as a Felony or Misdemeanor.  Depending on the nature of the crime, they are each classified as Class 1 to 3 Misdemeanors, or Class 1-6 Felonies.  There is a corresponding sentence range for each class of Felonies and Misdemeanors.  Class 1 crimes being the most serious of the two categories.

What is a likely or probable sentence is more complicated because it is up to a Judge to evaluate aggravating and mitigating factors in determining sentence after a conviction.  If someone for example is charged with a regular non-dangerous Class 2 Felony they may be facing up to 12.5 years prison. But the normal or “presumptive” sentence for this offense is 5 years but a mitigated sentence can be as little as three years.  That gives the judge a lot of discretion in deciding what type of sentence is appropriate.

A plea agreement that is favorable will most likely limit the range of sentence that the judge could give the defendant.

There are numerous things that would impact a likely sentence given by a judge.  This could include a defendant's criminal history, the financial and emotional impact on the victim, and even which judge is presiding over the case.  All these factors will impact the evaluation on what is the likely sentence in the case if the Defendant rejects the government's plea offer, and ultimately gets convicted at trial.

Probability of Success At Trial or Pretrial Motions:

Knowing what you might face as punishment or sentencing is important in evaluating a plea offer, but making a determination about the probability of success at trial is an important factor too.  These subjective odds are considered by the prosecutor when they make a plea offer unless their office policy guidelines are very strict.  Prosecuting agencies in Mohave County tend to have a wide latitude in formulating plea offers in their cases.

Probability of Success At Trial May Be A Determining Factor As To What Plea Offer A Prosecutor Will Make.

Sometimes a plea offer is based on how good of a case a prosecutor has. What is the weight of the evidence against the accused? What are the witnesses' character like?  Are their eye witnesses, or just circumstantial evidence?

The plea offer might also depend on how good of a defense a defendant has.  What are the legal defenses in the case?  Is it self defense or justified? Did the police rush to judgment? Are their Alibi witnesses? Did the police do something technically wrong in the investigation?  These issues might turn the odds in the favor of the defendant.

A prosecutor has to weigh those odds with their desire to secure a conviction.  A good defense attorney uses those facts to negotiate for their client and can evaluate which issues will present the strongest argument for a favorable deal.

Collateral Consequences:

Besides possible sentence and possible legal defenses, deciding whether to take a plea deal may hinge on some of the more intangible or indirect consequences of receiving a conviction other than the possible criminal sentence.  These type of factors are called collateral consequences.

Some examples of collateral consequences could involve immigration rights, impact on employment or attendance in school, criminal restitution to victims, losing gun rights or stigma of conviction.

Sometimes the difference in accepting or rejecting a plea agreement might involve deciding which charges to admit guilt to and which ones are negotiated to possibly be dismissed.

Call A Lawyer, And Hire One

Existing clients of course want to know the answer to the ultimate question and they are entitled to it, especially the more difficult it is to figure out.

My clients hire me so that they can get the best results in their case.  I reviewed their case and consulted with them.  This question will come up whether a client wants to go to trial or not.

When a potential or prospective client calls me and asks me this, it is really a loaded question.

Without knowing the history or facts of the case, most callers still expect me to give a legal opinion that might change their lives and impact their future.

I believe that I can always get the best results for my clients, but I can't guarantee that outcome in every case even.  No matter how much I want to book that business or accept a new client or give them the best reasons to hire me, I cannot give an assessment about the outcome of the case before I have a thorough opportunity to evaluate it.

Even though I can't give a legal opinion off the cuff, I understand why potential clients want to know the answer.  Their case has probably been set for numerous pretrial hearings. They probably have a public defender who is representing them. For whatever reason they may be losing confidence with their representation or know that the decision is so important they are very anxious to get a second opinion.

If they do end up calling me, they want to find out if hiring a private lawyer is going to make a difference in their case especially if they are going to invest the money necessary to hire private legal representation.

I definitely understand your concern. I can't give every potential client who call me a legal opinion, but I can give them legal information.

It is my sincere hope that when you have this legal information you need then you can decide what direction you want to go with your case, and which attorney you will trust to assist you.

About Shawn Hamp

Shawn Hamp started his legal career as a former prosecutor with the Mohave County Attorney's Office. As a prosecutor he handled all types of criminal cases including juvenile delinquency, misdemeanors, drug task force/narcotics, felonies, and homicide Cases.  In 2007 he founded the Law Offices of Shawn B. Hamp in Kingman Arizona and represents private clients in criminal defense cases throughout Mohave County and Northern Arizona. You can follow him on Twitter @hamplaw.