Plea bargaining is one of the most important aspects of criminal defense practice. Like most vital areas of real world law, it is not taught in law school. All PB experience happens on the job.
One of the aspects of the plea bargain is talking with your ADA about problems with the case. For example, you may point out that the arresting officer isn’t very strong on the stand, or has recently been arrested etc.
Such statements are usually made with a request for a specific disposition; a dismissal or better plea terms. Most ADA’s have more than enough cases set for trial, many don’t want to waste time presenting a problem case to a jury.
When sharing information critical of an arrest your ADA may exhibit Kuber-Ross stages of grief. Being prepared for the denial/anger stages can help you avoid making a bad decision.
1. Denial:
“There is nothing wrong with this case.”
2. Anger:
“This case is fine!! Your client is going to jail!!!”
3. Bargaining:
“How about obstruction of a highway?”
4. Depression:
“I can’t believe I set this piece of shit case for trial.”
5. Acceptance:
“Time to pick the jury. I should dismiss this now while I have the chance.”
The intensity of the reaction depends on the severity of the charge, office policies, the defendant’s criminal record etc. The anger/denial stages can be intimidating to the novice defense lawyer. There may be threats of punishment enhancements, the withdrawal of probation offers etc.
Some DA’s have policies that require the trial of even the weakest cases. For example, Collin county is notorious for not dismissing DWI cases, no matter how flawed. Sharing critical information may not have much value in such a situation.
It should go without saying that subtlety also helps. Unless you are appearing pro hac vice you will meet that ADA again. You don’t have to be apologetic about problems with the case, but keep your wanton hubris in check.