When you are arrested and charged with a crime, there are a lot of decisions to make. The first decision should be hiring an attorney that understands criminal law and is not afraid to go to trial. If your attorney is not willing to go to trial, you are at a significant disadvantage.

What is your Leverage?

Much of the criminal justice process involves negotiation. Like any other negotiation, the person with the most leverage has the better negotiating position. There are three things any defendant has as leverage: (1) Good Facts, (2) Favorable Law, and/or (3) Trial.

Good Facts

Good Facts are always an advantage. Facts that show that a crime was not committed, or that the defendant more than likely didn’t do it, is a criminal defense attorney’s dream. The problem is that the District Attorney seldom files charges when the facts are so bad that it would lead to a dismissal.

Favorable Law

Favorable Law is more often the thing that gets cases dismissed. This is where by referencing statute or case law, your defense attorney can have key evidence excluded, or that whatever occurred was not actually a crime by law. The most common situation is when your defense attorney can show that the search or seizure was done unconstitutionally. Again, this does occur at times, but it is the exception and not the rule.

The Real Threat of Trial

Trial is often the leverage that moves the District Attorney to negotiate a reasonable plea deal. The practical matter is that there are only so many resources to prosecute defendants, and the DA focuses those resources on the most violent and dangerous crimes. The rest of the cases are handled through deals. The problem for the defendant is that the DA holds almost all of the leverage. The only real leverage is the threat of taking a case to trial. This is why it is important to have an attorney who the DA knows will take it to trial if the plea offer is not reasonable. Most times this is the only leverage you have as a defendant.

Choose Your Attorney Wisely

So, the take-away here is that no matter how serious the charges, hire an attorney that knows criminal law and is not afraid to take a case to trial. The reality is that most cases never go to trial, but if your attorney doesn’t make the prosecutor feel like that is an option, then you have lost your greatest leverage in negotiating a plea deal.

Author: Brian J. Boeheim

Brought to you by: Boeheim Freeman Law - 918-884-7791