Communicating The Plea Offer, or “I Thought I Told You About That”

by Rick Wetzel on December 5, 2010

Plea bargaining is a fact of life in the criminal justice system.  Over 90% of all criminal prosecutions are resolved by means of a plea agreement between the prosecution and the defense. Plea bargaining can be an ongoing process with multiple plea offers over a protracted period of time.  Once an agreement is reached between the parties, it is generally approved by the trial court.

Right To Be Informed of Plea Offer

An accused is entitled to the effective assistance of counsel during the plea bargaining process.  A defendant has a right to be informed about plea bargain offers as part of his participation in the decision-making process surrounding his defense.

The failure of defense counsel to inform a defendant of plea offers made by the state is an omission that falls below an objective standard of professional reasonableness and denies the defendant the effective assistance of counsel.  If an accused accepts a plea offer, his lawyer must communicate acceptance to the prosecution in a timely manner.

Ineffective Assistance Of Counsel

While a trial court is not obligated to accept the terms of a bargain reached by the parties, courts generally have not required that the defendant show the trial court would have accepted a plea bargain in establishing prejudice in these circumstances. The prevailing view is that a defendant is prejudiced by the missed opportunity of accepting such bargain and presenting it to the trial court for consideration in sentencing.

If a lawyer fails to tell his client of a plea offer from the government or rejects the offer without first consulting the client, the lawyer has denied the defendant the effective assistance of counsel guaranteed under the Sixth Amendment.  Such a complaint may be raised in a motion for new trial, criminal appeal, or habeas corpus challenge.

Do you have an established procedure to ensure all plea offers are timely communicated to your client?  If so, how do you handle it?

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