Should Defendant Negotiate with Prosecutor In Advance

A misdemeanor/criminal defendant often asks, “Can I talk to the prosecutor before my court date to try to work out a deal, like a lower fine or dismissal?”

Should a defendant negotiate with a prosecutor or not?

The anxiety of having a pending criminal case often leads to this type of brainstorming. It is good to think this way. And, it is good to also be patient and wait to see what is offered by the prosecution at the first hearing. The deal may be better than you think, or it could be worse. Either way, speeding things up is not going to help. Chances are that a prosecutor has not even looked at the case until shortly before the day of the first hearing.

Better yet, talk to a local attorney who knows the court, the prosecutor, and how these types of cases usually resolve. Previous case results do not determine how your case will resolve, but they make for a pretty good measuring stick.

Certain variables are good predictors of possible resolutions. For example, it is not uncommon for first time offenders to get some kind of deal that does not include jail. Sometimes if you comply with certain terms the case could be dismissed, like a deferred entry of judgment program, known as a “DEJ.” Having a dismissal is probably more important than a reduction in fine because then you do not get a criminal conviction on your record.

You really cannot talk to the prosecutor about your case in advance. They are very busy and they do not represent your interests. They will have your file in court on the day of the first hearing. They will probably have decided in advance what plea-bargain they are going to offer you. In addition, you may get a court offer that is entirely different. However, sometimes an attorney can get a better deal than a pro per (person representing themselves) because they get to negotiate with the prosecution or talk to the judge in chambers. A pro per is not going to get a chance to negotiate with a prosecutor or a judge, its usually just take the offer or leave it.

You should protect your rights and fight your case unless you get a resolution that you find agreeable. An attorney knows what those rights are and how to protect them. Probably best not to talk to a prosecutor. Do not incriminate yourself. Let an attorney advise you and do the talking for you. Be patient. That is the safest bet.

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