Tag Archives: criminal charges

Have I got a bargain for you!

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So you’ve described a crime. A suspect’s been caught, he’s all lawyered up, and now there’s a juicy trial scene you can’t wait to write. Maybe you’ve been inspired by all those great courtroom scenes you’ve seen on TV and in movies—all those wonderful speeches by lawyers; the surprise witnesses (which are almost never really allowed, by the way); the shocking new pieces of evidence (also rarely allowed); the high emotions of defendant, victim, and jurors. Courtrooms are a beautiful setting for drama.

But here’s the thing–in real life, few cases ever make it to court. In the United States, over 95% of criminal cases are settled with a plea bargain.

A plea bargain is pretty much what it sounds like: a negotiated deal between prosecutor and defendant. Generally, the defendant agrees to forego the trial and plead guilty to lesser charges. If there are multiple charges involved, the prosecutor might drop some. Or the defendant might plead guilty to the original charge but receive a reduced sentence. Judges usually approve plea bargains, although on rare occasions they may reject them. Recently, for example, a judge rejected a plea deal for the former LA County Sheriff because, the judge said, the resulting sentence was too lenient.

Plea bargaining usually begins early in the case but becomes more earnest after the preliminary hearing (or grand jury proceeding), which is when the defense gets a fairly thorough preview of the prosecution’s case. A plea deal can continue during the trial, right up until the moment the verdict is announced, but usually an agreement is made long before the case gets to court.

The biggest benefactor of plea bargaining is the system itself. Our courts are already overburdened, and the justice system would come to a screeching halt if plea bargains didn’t exist. Can you imagine if the number of criminal trials were increased by 2,000%? Prosecutors benefit because plea bargains make their conviction rates look good. Defendants might benefit by getting a reduction in punishment. Arguably, victims might benefit by avoiding the rigors of testifying in court, as well as by having faster closure to their cases.

But plea bargaining is controversial. Victims’ advocates and those who favor harsh punishment argue that offenders get less than they deserve. Even worse, though, innocent defendants may be pressured by overburdened defense attorneys into pleading guilty. Even if the defense attorney doesn’t exert pressure, the innocent defendant is faced with a terrible gamble: plead guilty and get punished for a crime she didn’t commit, or take her chances at trial, knowing that if she’s convicted, she’ll end up with an even more severe punishment.

Personally, I think that’s a plot point that’s received way too little attention. Imagine the angst your character will experience while she decides whether to say, plead guilty to manslaughter and do ten years, or go to trial on murder charges and possibly end up in prison for the rest of her life. Picture the pressure she’ll be under from her lawyer, her friends and family. The mental anguish she’ll face no matter which decision she makes. There’s so much fictional gold to be mined here, you might want to consider skipping that boring old trial scene altogether.

Pressing Charges

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Ralph stood, arms crossed, as his ex-boyfriend broke down in tears.

“I’m so sorry!” Zachary sobbed. “I shouldn’t have stolen your wallet. I shouldn’t have used your cash to buy five hundred bucks’ worth of free weights and protein powder. I shouldn’t have used your credit card to buy plane tickets to Cabo for me and that guy I met at the gym. Please forgive me!”

Not in a forgiving mood, Ralph shook his head. “Too late. I’ve already filed a police report. I bet there’s a warrant out for you.”

Zachary wailed and fell to his knees. “I’m begging you, Ralph! I don’t want to go to jail. Please don’t press charges!”

Ralph just smiled.

Why is Ralph smiling? Because he knows something his cheating, stealing ex does not: it’s too late for what Zachary is asking.

Victims of crime generally have a choice whether to report it. And they can later make some decisions about how cooperative they want to be in aiding the police investigation. But the only one who can decide whether to press charges is the prosecutor.

This rule has two implications. First, even if a victim decides he doesn’t want the perp to go to jail, he can’t stop the prosecutor from bringing charges. And second, if a prosecutor decides for any reason not to bring charges, there’s nothing the victim can do about it. I know you’ve heard otherwise on a zillion TV shows and probably read otherwise in a zillion books. Ignore all that. The power to bring a criminal case belongs exclusively to the prosecutor. Not to victims, not to cops, not to judges.

Why? This goes to something I’ve blogged about before: the CJ system is intended to act on behalf of society as a whole. Not on behalf of victims. And the prosecutor is, essentially, representing society. You can guess this when you look at criminal case names, which often look like People v. Smith or New Jersey v. Jones. The inhabitants of that state as a whole are one of the parties, and they’re represented by the prosecutor. The victim is not a party to the case.

Now, victims do have some options. As I said, it’s often up to the victim whether to report the crime to police. If Ralph never told the police about Zachary’s misdeeds, the prosecutor would probably never have known that Zachary broke the law, and therefore no charges would have been filed. The victim can also decide how fully to cooperate. Technically, the prosecutor could use various legal means  (such as deposition and subpoena) to force Ralph to answer questions and testify in court. But in practice, if the victim is uncooperative, it’s often tough to get a conviction, so prosecutors may drop the case.

Regardless of what happens with the criminal case, Ralph can also choose to bring a civil lawsuit against Zachary. If he wins, Ralph can try to reclaim his monetary losses. But dragging it into court may not be worth it if the dollar amount is small or if attorney fees will eat up most of it. Or if Zachary is a deadbeat and has no way to pay the judgment.

The takeaway for you as a writer? Victims don’t press charges; prosecutors—and only prosecutors—do.

And Ralph needs to have better taste in boyfriends.