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Plea Bargaining - Third Edition

ISBN: 978-1-57823-354-0
Author: G. Nicholas Herman
Page Count: 596
Published: February 2012
Last Updated: June 2013 (Pocket Part Supplement)
Media Desc: 1 Hardcover Volume. Index. Appendices. Table of Cases.
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Plea Bargaining -- the only comprehensive, fully up-to-date reference on the subject -- teaches you how to negotiate the best deal. It discusses the nature, types and goals of plea bargaining, and treats in detail a wide variety of styles and strategies. Attorneys on both sides of the aisle know that effective plea bargaining is both an art and a science. You'll find extensive analysis of plea bargaining in state and federal courts, the process of negotiating with the U.S. Attorney under the U.S. Sentencing Guidelines, as well as the plea policies of the Department of Justice contained in the United States Attorney’s Manual and the Principles of Federal Prosecution. Other pertinent standards and rules such as the ABA Standards for Criminal Justice, National District Attorneys Association Prosecution Standards and the ABA Model Rules of Professional Conduct are also discussed and analyzed.



Table of Contents


About the Author


Chapter 1 Introduction
§ 1:01 The Nature, Types, and Goals of Plea Bargaining 
§ 1:02 Plea Bargaining Styles and Strategies 


Chapter 2 The Prosecutor's and Defendant's Interests and Objectives
§ 2:01 Introduction
§ 2:02 Factors Affecting the Prosecutor's Interests and Objectives
§ 2:03 Factors Affecting the Defendant's Interests and Objectives


Chapter 3 Constitutional Considerations and the Role of Counsel
§ 3:01 Constitutional Considerations, In General
§ 3:02 The Role of the Prosecutor
§ 3:03 The Role of Defense Counsel 


Chapter 4 Wrongful Prosecution
§ 4:01 Introduction
§ 4:02 The Scope of Discretion in the Prosecutor's Charging Decision
§ 4:03 Ethical Limitations on the Charging Decision 
§ 4:04 Constitutional Limitations on the Charging Decision in General
§ 4:05 Discriminatory or Selective Prosecution 
§ 4:06 Establishing Nonprosecution of Others Similarly Situated 
§ 4:07 Establishing Invidiousness or Bad Faith 
§ 4:08 Pleading and Procedure 
§ 4:09 Vindictive or Retaliatory Prosecution 
§ 4:10 Establishing Vindictiveness or Retaliation 
§ 4:11 Double Jeopardy in General 
§ 4:12 Prosecutions by Dual Sovereigns and the Bartkus Exception 
§ 4:13 Remedies for Wrongful Prosecution in General 
§ 4:14 Civil Liability for Wrongful Prosecution 
§ 4:15 The Hyde Amendment -- Attorney's Fees and Costs for Vexatious, Frivolous, or Bad Faith Prosecutions 
§ 4:16 Tactical Considerations in Raising Wrongful Prosecution


Chapter 5 Preparing for Plea Bargaining 
§ 5:01 Introduction 
§ 5:02 Information to Obtain 
§ 5:03 Sources of Information 
§ 5:04 Preparing a "Plea Bargaining Preparation Outline"
§ 5:05 Step 1: For the Defendant and the Prosecutor, Make a List of Information "To Find Out," Information "To Reveal," and Information "To Protect"
§ 5:06 Step 2: Make a List of the Defendant's and Prosecutor's "Interests"
§ 5:07 Step 3: Make a List of the Defendant's and Prosecutor's "Primary Objectives," "Secondary Objectives," and "Incidental Objectives (to Trade)" 
§ 5:08 Step 4: Make a List of All Possible Plea Bargains (from most preferred to least preferred) 
§ 5:09 Step 5: Make a List of the Defendant's and Prosecutor's Factual and Legal Leverage Points (Strong and Weak)
§ 5:10 Step 6: Make a List of the Defendant's and Prosecutor's Offers or Proposals in the Order They May Be Presented 
§ 5:11 Step 7: Make a List of the Defendant's and Prosecutor's Particular Tactics
§ 5:12 Step 8: Revise All of the Foregoing Lists throughout the Plea Bargaining Process 
§ 5:13 Format for "Plea Bargaining Preparation Outline" 
§ 5:14 Illustration of Plea Bargaining Preparation Outline (Drug Defendant) 
§ 5:15 The Role of the Client and Advising the Client 


Chapter 6 Plea Bargaining Tactics 
§ 6:01 Scope of Chapter
§ 6:02 Coalition
§ 6.03 Cooperation from the Defendant 
§ 6:04 Deadlines
§ 6:05 Delay 
§ 6:06 Dodging the Question 
§ 6:07 Illusory Promises 
§ 6:08 Image Building
§ 6:09 Lack of Authority or Limited Authority 
§ 6:10 Last Minute Pleas 
§ 6:11 Obtaining Discovery
§ 6:12 Obtaining Information 
§ 6:13 Overcharging 
§ 6:14 Package Deals 
§ 6:15 Plea Policies Excuse 
§ 6:16 Polygraph Tests 
§ 6:17 Protecting Information 
§ 6:18 Publicity 
§ 6:19 Quick Pleas 
§ 6:20 Take-It-or-Leave-It 
§ 6:21 Threats 
§ 6:22 Waiver of Constitutional Rights 


Chapter 7 Negotiating the Plea Agreement 
§ 7:01 Scope of Chapter 
§ 7:02 With Whom to Bargain 
§ 7:03 When to Bargain and Who Should Initiate Bargaining 
§ 7:04 Where to Bargain and Who Should Attend 
§ 7:05 Setting the Tone and Agenda 
§ 7:06 Reading Body Language 
§ 7:07 Exchanging Information 
§ 7:08 Making Offers, Counteroffers, and Concessions 
§ 7:09 Sentencing Factors 
§ 7:10 Types of Plea Provisions 
§ 7:11 Forms of Persuasion 
§ 7:12 Finalizing the Bargain and the Role of the Judge in Bargaining 


Chapter 8 Negotiating with the U.S. Attorney under the U.S. Sentencing Guidelines 
§ 8:01 Scope of Chapter 
§ 8:02 An Overview of the Sentencing Guidelines 
§ 8:03 Plea Policies of the Department of Justice, In General 
§ 8:04 Bargaining to Prevent Prosecution 
§ 8:05 Bargaining for Reduced Charges 
§ 8:06 Bargaining with Cooperation 
§ 8:07 Bargaining with Acceptance of Responsibility 
§ 8:08 Bargaining for a Reduced Sentence 
§ 8:09 Special Grounds for Departure 
§ 8:10 Upward Departures 
§ 8:11 Discovering the Government's Sentencing Position 
§ 8:12 Illustration of Motion to Compel Sentencing Guidelines Information 
§ 8.13 Bargaining for a Sentence outside the Sentencing Guidelines 
§ 8:14 Department of Justice Policies about "Nolo Contendere" and "Alford" Pleas 


Chapter 9 Negotiating with the U.S. Attorney in Special Cases
§ 9:01 Overview of Criminal and Civil Forfeiture 
§ 9:02 Plea Policies of the Department of Justice in Forfeiture Cases 
§ 9:03 Plea Policies of the Department of Justice in Tax Cases 
§ 9:04 Plea Policies of the Department of Justice about International Prisoner Transfers 
§ 9:05 Plea Policies of the Department of Justice about Deportation of Defendant Aliens
§ 9:06 Principles of Federal Prosecution of Business Organizations 


Chapter 10 Entering the Plea 205
§ 10:01 Scope of Chapter 
§ 10:02 Types of Pleas 
§ 10:03 -- Plea of Not Guilty 
§ 10:04 -- "Straight" Guilty Plea 
§ 10:05 --Alford Plea 
§ 10:06 -- Nolo Contendere Plea 
§ 10:07 -- Conditional Plea 
§ 10:08 General Procedures on Entering a Plea 
§ 10:09 Entering the Plea under a Plea Agreement 
§ 10:10 Illustration of Taking a Plea of Guilty or Nolo Contendere (Individual Defendant) 
§ 10:11 Checklist for Defense Counsel in Entering the Defendant's Plea 
§ 10:12 Illustration of Taking a Plea of Guilty or Nolo Contendere (Corporate Defendant) 


Chapter 11 Sentencing 
§ 11:01 Scope of Chapter 
§ 11:02 Sentencing Principles and Procedure, In General 
§ 11:03 The Requirement of the Presentence Report 
§ 11:04 Responding to the Presentence Report and Outline of Defense PSI 
§ 11:05 The Sentencing Hearing 
§ 11:06 Advocacy at the Sentencing Hearing 
§ 11:07 Illustration of Imposing Sentence 
§ 11:08 Checklist for Defense Counsel at Sentencing


Chapter 12 Enforcing the Plea Bargain 
§ 12:01 Introduction 
§ 12:02 Constitutional Grounds and Remedies for Enforcement 
§ 12:03 Bargains Benefiting or Binding Third Persons 
§ 12:04 Construing the Terms of the Bargain 
§ 12:05 The Prosecutor's Performance of the Bargain 
§ 12:06 The Defendant's Performance of the Bargain 
§ 12:07 Procedure for Enforcing or Abrogating the Bargain 


Chapter 13 Withdrawing the Guilty Plea 
§ 13:01 Scope of Chapter 
§ 13:02 Withdrawing the Plea before Sentence Is Imposed 
§ 13:03 Withdrawing the Plea after Sentence Is Imposed 


Rule 11 -- Federal Rules of Criminal Procedure 

Rule 32 -- Federal Rules of Criminal Procedure 

United States Attorneys' Manual 

United States Sentencing Guideline 

ABA Standards for Criminal Justice -- Prosecution
Function and Defense Function 

National District Attorneys Association --
National Prosecution Standards 

Selected ABA Model Rules of Professional Conduct 

Sentencing Commission Worksheets for Calculating
a Guidelines Sentence 




Author Detail

G. Nicholas Herman practices law in Chapel Hill, NC. He was formerly a Partner in the firm of Coleman, Bernholz, Bernholz, Gledhill, Hargrave & Herman. He now practices with the Brough Law firm where his practice concentrated in general, civil and criminal litigation and appeals. He has extensive litigation experience in state and federal court in a wide variety of areas of law, including county defense, zoning issues, personal injury, civil rights, criminal law, and employment law. He has also argued numerous cases in the North Carolina Supreme Court North Carolina Court of Appeals and the United States Court of Appeals for the Fourth District.

Mr. Herman is an Adjunct Professor at Duke Law School and North Carolina Central University School of Law, and he has also taught on the adjunct faculty at Campbell Law School and Elon University. He teaches courses in trial practice, the law of evidence, appellate advocacy, criminal law, criminal procedure, alternative dispute resolution, pleading and practice, statutory interpretation, and pretrial litigation. Since 1993, he has also taught on the faculty of the National Institute of Trial Advocacy in trial practice, negotiation and mediation, and deposition-taking skills. He is the author of two other books, Practical Evidence: The Law, Foundations, and Trial Techniques (2d ed. West Group 1999), Legal Counseling and Negotiating: A Practical Approach (LexisNexis 2009) and a A Practical Approach to Client Interviewing, Counseling and Decision-Making: For Clinical Programs and practical-Skills Courses (LexisNexis, 2009). He has also written over 30 articles on various subjects of civil and criminal litigation, including direct examination, opening statement, jury instructions, deposition taking, issues in employee drug testing, nuisance abatement, the law of damages, appellate oral argument, and appellate brief writing. Mr. Herman has been a lecturer at numerous Continuing Legal Education programs on topics such as the law of damages, witness preparation, legal aspects of drug testing, and ethical considerations in civil litigation and appellate practice.


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