Are most Plea Bargains made Before or After the Preliminary Hearing? ~ Chosen as “Best Answer” by Asker on AVVO ~ Call Michael A. Haber, Esq. @ 1-888-SHARK-8-1

Still, I will humor you for a few moments before MNF begins (I’m feeling particularly charitable)…

Defense lawyers (at least this one) do not go into a case seeking a plea bargain. We go into a case seeking to find a mechanism (any mechanism, whether factual, legal, procedural, substantive… it matters not) by which to attack and to beat the case / charges.

That said a smart defense lawyer will never close her/his mind to the possibility of a plea bargain (and in fact most criminal cases are resolved by negotiation), but, as with anything, your best deals will come when you are bargaining from a position of power.

Going into it right out of the gate and at the stage of a preliminary hearing, you probably don’t know enough about a given case or the possible defense or potential mitigating factors for the client to intelligently (or, insofar as the lawyer is concerned, “effectively”) enter into a plea bargain.  This does not mean that some percentage of cases won’t plea quickly (they will – in fact many client;s will be better off with a quick plea), but it does mean that that is not the ideal, nor is it the gold standard of defense litigation.

Experience proves that even if you have a case that is a proverbial dog with fleas (a turd, a dead duck) a quick plea may not be the best resolution. Why? Because there is only one certainty in criminal court and that is that anything can happen. Witness forget, die, have accidents, move, fail to appear… Evidence dissipates, gets lost… Files get displaced, misplaced, lost in the mix… Speedy Trial time continues to tick… In short sometimes you simply get lucky (and this applies equally to the possibility getting a great defense oriented jury which simply refuses to ever agree with the government – take a look at the concept known as “jury nullification”).

In criminal court, just like in the NFL on any given Sunday (Monday in Court), the worst case (team) can win and the best case (team) can lose.

So, “When a defendant is charged or accused of a crime, how do their defense attorneys make a plea bargain with the prosecutor? Does a good experienced defense attorney already have a deal in place before the preliminary hearing for charge or is it usually done at the day of?”…

It depends. My mantra:  Never foreclose any possibility, never close your eyes and ears to any reasonable offer and never go into a case with your mind set and game plan case in concrete.  Criminal cases are fluid.  It’s okay to have a plan (in fact it’s necessary), just don;t be married to it (i.e. keep an open mind as things tend to change, usually quickly and unexpectedly).

Each case is unique and many a plea is taken while the jury is outside of the courtroom.

Wishing you luck with your assignment and hoping that I have been helpful in answering your question.

(Btw – Consider sending / emailing me a copy of the completed paper. I’d like to read it. You can contact me through AVVO.)