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Preparing For Plea Bargaining - Chapter 5 - Plea Bargaining - 3rd Edition

Author: G. Nicholas Herman
Page Count: 22
Published: February 2012
Media Desc: PDF from "Plea Bargaining" 3rd Edition
File Size: 167 KB

Originally from:
Plea Bargaining - 3rd Edition - Hardcover
Plea Bargaining - 3rd Edition - Electronic

Preview Page

§ 5:01 Introduction
Thorough preparation is essential to effective plea bargaining. Before
beginning to plea bargain, you11 must (1) obtain all information relevant to
understanding what plea may reasonably be obtained for your client,2 and
(2) transpose that information into a working outline, a “Plea Bargaining
Preparation Outline,” from which an overall negotiating approach can be
developed and employed.
§ 5:02 Information to Obtain
Generally, you should obtain all information that may be pertinent to
the entire plea bargaining process. This information should serve as the
raw material from which you can identify (1) what further information to
find out; (2) what information to reveal during the course of plea
bargaining; (3) what information to protect from disclosure; (4) the
underlying interests of your client and the prosecutor; (5) the primary,
secondary, and incidental objectives of your client and the prosecutor; (6)
all possible bargains that might be entered into; (7) the strongest and
weakest factual and legal leverage points for each side; (8) the specific
offers or proposals that may be made by the defendant and the prosecutor;
and (9) the tactics each side might employ during the plea bargaining
process. In seeking to obtain this information, consider the following
categories and factors:
(1) The Strengths and Weakness of the Prosecutor’s Case
• The nature of the charge (i.e., type of offense and whether a
misdemeanor or felony).
• The evidence in the case for the prosecution and the defendant.
• The actual guilt or innocence of the defendant.
• The age of the offense.
Possible defenses and defense motions.
• The defendant’s and victim’s jury appeal.
• The feelings of the victim and the police.
• Public sentiment.
• Any mitigating circumstances about the defendant or his culpability.
• The probable outcome of a trial.
• Possible appealable issues.
• The likelihood additional charges will be brought.
(2) The Law Relevant to the Charge and Sentencing, and Consequences of
Pleading Guilty
• The legal sufficiency of the charge.
• The existence of lesser included offenses.
• The maximum, minimum, presumptive, or mandatory sentence for
the charge.
• The availability of pretrial diversion, expungement, probation, or
• The availability of some other noncriminal disposition (e.g., dispute
resolution/community service).
• Any collateral consequences of pleading guilty (e.g., loss of license,
employment, etc.).
• The defendant’s exposure to civil liability.

Table of Contents

§ 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
§ 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

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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