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Oct 03, 2021

Should I Take a Plea Bargain for My Crime?

If you were recently charged with a crime, you’re understandably stressed out about what could happen. Are you going to go to county jail or state prison? Are you going to have to pay big fines, or go to classes for several months? How about parole – are you even eligible?

You likely have a lot of questions about what could happen. One possibility you’ve heard of is a plea bargain, and you’re wondering if it would apply to your case. By learning more about plea deals and calling an Oakland criminal defense attorney like Elliot Silver at Silver Law Firm, you can feel more confident in your case and about what the future holds.

What Is a Plea Bargain?

Plea bargains, also called plea deals or negotiated deals, occur when a defendant, or the person who is being charged with a crime, pleads guilty or no contest to a crime. In exchange, the prosecutor will drop one or more of the charges, reduce a charge (or charges), or ask the judge to give a specific sentence that the defense accepts.

Why Are Plea Bargains Used?

A plea bargain could be used for a few different reasons. First, a prosecutor has to prove that you are guilty of a crime beyond a reasonable doubt, which is a high standard they have to meet. If they don’t have sufficient evidence, the jury may not be convinced and you might have all your charges dropped. The prosecutor may not want to take that risk, so they let you enter into a plea bargain instead.

The second reason is because criminal courts and jails are crowded, and criminal cases can take days, weeks, or months to go through the trial system. Rather than clogging up the system, prosecutors and judges would rather sort out cases with plea bargains, which can be completed in just a few minutes. They will still have some control over the outcome of the case if they go with a plea bargain instead of a trial.

Plea bargains are so common that they are used in about 90% of criminal cases. Only 10% on average will actually end up going to trial nowadays.

Different Types of Bargaining

Usually, plea bargains consist of change bargaining, count bargaining, fact bargaining, or sentence bargaining.

With change bargaining, the prosecutors will drop some of the charges or reduce a charge to a less serious offense if the defendant makes a plea.

With count bargaining, a defendant will plead guilty to one or more original charges, and the state will drop the other charges.

With fact bargaining, the defendant will plead guilty if the state omits some details about the case.

With sentence bargaining, the prosecutor will recommend a lighter sentence for specific charges as long as the defendant agrees to plea guilty or no contest. No contest means that the defendant accepts the conviction but doesn’t admit or plead guilt.

Why Plead No Contest?

There are certain advantages to pleading no contest instead of guilty. Even though it will end up in a conviction and show up on a defendant’s record, a defendant is protecting themselves. This is because if the alleged victim wants to sue them in civil court, the victim won’t have an admission of guilt to serve as evidence. If a defendant does plead guilty, then it could be used as evidence in a civil case. For instance, this could apply if a defendant was allegedly driving drunk and hit someone and injured them. The victim could not use a guilty plea as evidence if the defendant pleaded no contest when they took them to civil court for damages.

When Should You Not Accept a Plea Bargain?

Your Oakland criminal defense attorney will advise you when you should – and shouldn’t – pursue or accept a plea bargain. They will do their research into the prosecutor’s evidence against you and see if it is strong. If it is, then a plea bargain could be the best route to go. But if the evidence is weak or there isn’t any evidence, then accepting a plea bargain could hurt you. In this case, you could end up getting unfairly penalized for a crime. It could have been better for your attorney to take your case all the way to trial and have your charges dropped altogether.

You should never feel pressured by either a prosecutor or your attorney to take a plea bargain. Instead, you should work with your attorney to figure out the best solution possible. If you don’t trust their expertise, you can always find a new attorney with more experience and better case results.

Unfortunately, some attorneys would rather go with plea bargains than fight your case all the way to trial, even if that’s not the best course of action. You want someone who will work hard for you no matter what. Additionally, you should always feel like you can be open with your attorney and ask them questions about their legal strategy. If you don’t feel comfortable with your attorney, then it’s time to find one who makes you feel comfortable and like you have control over your case as well.

What Is Overcharging?

Prosecutors will sometimes used a strategy called overcharging in order to get defendants to accept plea bargains. If a prosecutor believes that they have strong evidence for one or several charges and a conviction is likely going to happen, then they may go after additional charges with weaker evidence and then tell the defendant they’ll drop those additional charges if the defendant pleads guilty on the main charges. This gives the prosecutor more negotiating power. The defendant may have to spend additional time in jail or prison or pay higher fines if convicted, so they’ll be much more likely to accept a plea bargain when overcharging is involved.

Can You Appeal After a Plea Bargain?

If you plead guilty or no contest to your charges, then you might lose your right to appeal if your sentencing is not fair. If you end up being found guilty at a trial, then you have the right to appeal your conviction.

Should You Accept a Plea Deal Without an Attorney?

You should never accept a plea deal without first consulting your Oakland criminal defense attorney. Even if a plea deal seems like a good solution, and you don’t want to spend the money on an attorney, it could end up having disastrous results for you and your future. For instance, not only could you end up going to jail or prison for several years, but you could also have to pay hefty fines. Then, once you get out of jail or prison, you could have trouble landing a job, getting federal loans for college, obtaining a gun license, voting, or doing other things that you normally could do before you ended up with a conviction on your record.

You may also be wondering if it’s a good idea to use the court-appointed attorney instead of hiring private representation. Court-appointed attorneys are typically dealing with several cases at one time and won’t have the time or energy to dedicate to your case. This means they may not be available to answer questions or they could rush your case without getting you a solid plea bargain. They may also not want to take your case to trial, even if that’s the best course of action for your case.

Even though it’s an investment, hiring an Oakland criminal defense attorney is always worth it because you can’t risk your future. It’s an investment in the rest of your life. Don’t take any chances with it.

When Do Plea Bargains Happen?

Usually, plea bargains can happen at any point in the criminal justice process. They can occur even before you’re charged with a crime, and right after you get arrested. They can also happen before a jury comes back to a courtroom to announce the verdict. If a hung jury occurs, then a plea deal could also be made. A hung jury means that the jurors are split and cannot make a unified decision. A plea bargain could also be made following a conviction while a case is going through an appeal.

What Happens During a Plea Bargain

The court needs to approve the prosecutor and your Oakland criminal defense attorney’s plea bargain. The judge is going to ask you, the defendant, a series of questions to make sure that your plea is voluntary and that you haven’t been promised something that the court cannot give you. The judge will explain the consequences of you accepting a plea bargain and how you are giving up your right to a trial by jury. They will say how you are also forfeiting your right to appeal your sentencing and the right to confront the witnesses that the prosecution presents.

Once a plea bargain has been provided by the prosecution, accepted by the defendant and their representation, and approved by the court, everyone has to then follow through with the bargain. They all have the right to make sure that each side is following through with their part of the bargain.

What Other Information Could Lead to a Favorable Plea Deal?

When negotiating a plea bargain, your Oakland criminal defense attorney may also bring up pertinent information that could help you win a favorable outcome. If the following apply, they could highlight the fact that you have no criminal record, you have a job, a family, and/or kids, or you suffer from a mental health or addiction issue. If you agree to pay the alleged victim restitution, that could also help you.

Can a Judge Reject a Plea Bargain?

Typically, a judge will accept a plea bargain. But if a judge thinks that a defendant is being treated too nicely, then they may reject the plea bargain. They will usually never say that the prosecutor is being too harsh on the defendant. The judge will typically not favor the defendant, unless a prosecutor is being completely unreasonable.

Your Part in Achieving a Favorable Outcome

It isn’t entirely up to your attorney to ensure that you achieve the best outcome possible with your case. You also have to do your part.

This means staying out of trouble and not committing any other crimes while awaiting your sentencing. Even if you’re innocent, you should also not attempt to contact the victims or talk about your case with anyone aside from your Oakland criminal defense attorney. Never, ever post about it publicly, like on social media.

You should also write down everything that happened during your arrest as soon as possible. Ideally, this is right after you get out of jail following your arrest. If the cops did anything out of line, like conduct an unlawful search and seizure or fail to read you your Miranda rights, which is your right to remain silent, then you could use this in your case.

It is a good idea to listen to your attorney and follow their directions and lead. Let them talk with the prosecutor and judge. If you have any questions or want to take a more direct role with your case, then you can always ask your attorney questions and how you can be the best help possible to them.

Finding an Oakland Criminal Defense Attorney

To find an Oakland criminal defense attorney, look for one who has several years of experience and excellent case results. Elliot Silver of Silver Law Firm fits the bill.

In one case, a client was going to face almost certain deportation if convicted of a strike felony. Elliot Silver facilitated a favorable plea agreement to a non-strike offense and credit for time served, which removed his client’s fear of deportation and saved his life as he knew it.

If you’ve been charged with a crime and are wondering about reaching a plea bargain or going to trial, reach out to Oakland criminal defense attorney Elliot Silver today at (510) 995-0000 or by emailing him at

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