Plea Bargaining
Course
Court
Systems
and
Practices
Unit X
Pre-trial
Essential
Question
How does
plea
bargaining
work?
TEKS
§130.296(c)
(4)(D)(E)(F)
Prior
Student
Learning
Familiarizati
on with
pleas and
arraignment.
Estimated
Time
2 to 4 hours
Rationale
Plea bargaining is used to assist overcrowded court dockets, district attorneys,
and defendants. Understanding the function and process of plea bargaining is
essential to persons pursuing careers in law and public safety.
Objectives
The student will be able to:
1. Define terms associated with the lesson
2. Explain the purpose of our plea bargaining system
3. Analyze plea bargaining situations
4. Discuss the pros and cons of plea bargaining
5. Role-play plea bargaining scenarios
Engage
Do an Internet search for the following: Man accepts plea bargain in intoxicated
manslaughter case. Read the article about Plea Bargaining. Have students write
short essay answers to the following questions, and conduct a guided
discussion:
 Why would a defendant plead “guilty” to a crime?
 Why would the state offer a plea bargain to a defendant?
Use the Discussion Rubric for assessment.
Key Points
I. Key Terms
A. Plea – an accused’s response in court to the charges made against him
or her
B. Plea Bargain – formal agreements between the prosecution and defense
concerning the defendant’s offering of a guilty plea in exchange for some
form of sentencing leniency.
C. Guilty Plea – a defendant’s formal affirmation of guilt to the charges
contained in a complaint, information, or indictment, in which the
defendant claims that he or she committed the offenses listed
D. Not Guilty Plea – a defendant’s formal answer to the charges in a
complaint, information, or indictment, in which the defendant states that
he or she has not committed the offense(s) as charged
E. Nolo Contendere – a plea of “no contest” to charges
F. No Contest – same as nolo contendere in that the defendant does not
contest the charges. The effect is the same as a guilty plea, except the
plea cannot be used against the defendant as an admission in any
subsequent civil proceeding arising out of the same offense.
G. Prosecutorial Discretion – the decision-making power of prosecutors
based upon the wide range of choices available to them in the handling
of criminal defendants, the scheduling of cases for trial, and the
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acceptance of bargained pleas
H. Arraignment – the official proceeding in which a defendant is formally
confronted by criminal charges and enters a plea, and a trial date is
established
I. Alford Plea – a guilty plea by a defendant who claims innocence
II. Purpose of Plea Bargaining
A. For a Defendant
1. Avoid the time involved in defending self at a trial
a) Months before a case goes to trail
b) Length of a trial
c) Resets
2. Avoid the cost of defending self at a trial
a) Attorney’s fees
b) Court costs
c) Expert witnesses
3. Risk a harsher punishment if it goes to trial
a) Trial conviction punishments are more stringent.
b) Judges are harsher if defendants do not accept a plea bargain
agreement.
4. Avoid publicity
a) Newspapers
b) Television
B. For the State
1. Saves time
a) Heavy caseloads
b) Reduces time spent in trial preparation
2. Saves expense
a) Investigation fees
b) Expert testimony fees
c) Scientific evidence costs
C. For Both
1. Reduces the uncertainty of going to trial
a) Will NOT go to trial if a plea bargain is agreed upon
b) Less stress
2. Do not have to go to trial on every criminal case
a) Gives parties flexibility
b) Can decide which cases are more deserving of a trial
III. Types of Plea Bargaining
A. Implicit Plea Bargaining
1. An understanding between the defense counsel and the prosecutor
that a guilty plea will be entered for a specific offense which carries a
conventional punishment
2. Usually somewhat less than what the maximum sentence could be
B. Charge Reduction Bargaining
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1. An offer from the prosecutor to minimize the number and seriousness
of charges against defendants in exchange for their pleas of guilty to
lesser charges
2. Also known as “charge bargaining”
C. Judicial Plea Bargaining
1. Occurs when judges offer sentences to defendants in open court in
exchange for their guilty pleas
2. Most frequently used in petty offenses
D. Sentence Recommendation Bargaining
1. Occurs when the prosecutor proposes a specific sentence in
exchange for the defendant’s guilty plea
2. “Take-it-or-leave-it” proposal
VI. Pros and Cons of Plea Bargaining
A. Pros
1. Reduces the uncertainties of criminal trials
a) If the defendant received a conviction at trial, it is more difficult
to predict what sentence would be imposed.
b) Processing time is much faster with plea bargaining
2. Fewer trials and trial delays
a) The prosecutor does not have to convince a jury.
b) Gives factual basis for the plea
c) If there is insufficient evidence, the plea agreement can be
rejected.
3. More convictions
a) Over 90% come from plea bargains
b) Negotiated guilty pleas
4. Reduces the cost of a trial
a) Far less expensive than jury trials
b) Subpoena costs
c) Expert witness fees
B. Cons
1. Self-incriminating nature
a) Defendants give up their constitutional right to jury trial
b) Give up the right to cross-exam their accusers
c) Relinquish the right against self-incrimination
2. Loss of judicial control
3. Circumventing habitual offender status (chronic offenders with
multiple felony convictions can avoid mandatory punishments)
4. Sentence reductions for serious offenders
5. Gender bias (women benefit more often)
6. Racial discrimination (minorities discriminated against in plea
bargaining)
Activities
1. Pros/Cons Plea Bargaining Poster
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Divide the students into four groups: prosecutor, defendant, judge, and
victim/victim’s family. Have students brainstorm the pros and cons of plea
bargaining from the perspective of their assigned role (prosecutor, defendant,
judge, or victim/victim’s family). Have students write and/or draw those on
poster board. Ask each group to present their reasons and display their
poster board. (Note: Plea bargaining is very controversial. Critics say it allows
dangerous criminals to get off with light sentences. Others argue that the
government should be forced to prove guilt beyond a reasonable doubt.) Use
the Presentation Rubric for assessment.
2. Plea Bargaining Role Play
a. Divide the class in half, Prosecutors vs. Defense Counsel. Those
students who role-play prosecutors should receive the Prosecutors
Scenarios handout. Defense counsel role-players should receive
Defense Scenarios handout.
b. Divide both groups up into small groups of three to four students. Explain
that each student will role-play a plea bargaining scenario with one other
student. Allow them 10 minutes to prepare their strategies. Tell the
students that each side has a handout that describes their role as a
prosecutor or defense attorney. The handout includes confidential
information that the other side does not have.
c. Instruct the students to think about what facts might help them persuade
the other side to agree to their proposition. For example, weak evidence
may help a defense attorney to get a better plea bargain. Additionally,
inform the prosecutors they do not have to plea bargain in any specific
case, but they will not be able to take all four cases to trial.
d. Pair one prosecutor with one defense attorney (if the class number is
uneven, have one team made up of two defense attorneys or two
prosecutors). Check for understanding of instructions.
e. Inform the students that, although desirable, it is not necessary that they
reach an agreement. Enact the role-plays simultaneously around the
room. Allow approximately 15-20 minutes. Have the students report
back to the large group what agreement was or was not made in each of
the four cases.
f. Have each group present their outcomes. Discuss the variety of
outcomes that could be achieved in this plea bargaining scenario. Allow
approximately 15 minutes for debriefing after the role-plays.
g. Explain to the students that negotiating a plea agreement is only the first
step. The client (the defendant) must agree to it voluntarily, intelligently,
and with the understanding of its consequences.
h. Comment on the acceptability of the plea arrangements that were
negotiated. Are any illegal? For example, agreeing to terms outside the
penalty range permitted by law.
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i. Conclude with a discussion of whether the students agree or disagree
with plea bargaining. Would plea bargaining offer advantages or serve a
purpose if "resources" were not so limited? In other words, would plea
bargaining still play a role if there were unlimited prosecutors, defenders,
judges and courtrooms?
Use the Discussion Rubric, the Presentation Rubric and/or the Role Play Rubric
for assessment.
Assessments
Plea Bargain Quiz and Key
Discussion Rubric
Individual Work Rubric
Presentation Rubric
Research Rubric
Role Play Rubric
Writing Rubric
Materials
Plea Bargaining computer-based presentation
Plea Bargain Key Terms
Defense Scenarios handout
Prosecutor Scenarios handout
Poster Board
Markers
Computer with Internet access
Resources
Champion, Dean John, Hartley, Richard D. & Rabe, Gary A. Pearson Criminal
Courts: Structure, Process, & Issues. (2nd edition) Prentice Hall, 2008.
Del Carmen, Rolando V. Criminal Procedure: Law and Practice. (8th edition)
Wadsworth, 2010.
www.courts.wa.gov/education/lessons/?fa=education_lessons.display&displayid
=Pleabarg
Do an Internet search for the following: Man accepts plea bargain in intoxicated
manslaughter case
Accommodations for Learning Differences
For reinforcement, students will list terms and explain how each relates to plea
bargaining. Use the Individual Work Rubric for assessment.
For enrichment, students will research the following US Supreme Court cases
and will analyze them by writing case briefs for both: Brady v. United States
(1970), and Bordenkircher v. Hayes (1978). Use the Research Rubric for
assessment.
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State Education Standards
Texas Essential Knowledge and Skills for Career and Technical Education
§130.296. Court Systems and Practices (One to Two Credits).
(4) The student examines the steps by which a criminal charge is processed
through pretrial, trial, adjudication, and the appellate stages. The student is
expected to:
(D) explore the impact of pleas and plea bargaining on the trial
proceedings;
(E) identify the trial process from pretrial to sentencing;
(F) evaluate a simulated criminal case.
College and Career Readiness Standards
Social Studies Standards
I. Interrelated Disciplines and Skills
F. Problem-solving and decision-making skills
1. Use a variety of research and analytical tools to explore questions
or issues thoroughly and fairly.
2. Analyze ethical issues in historical, cultural, and social contexts.
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Plea Bargaining Key Terms
1. Plea – an accused’s response in court to the charges made against him or her
2. Plea Bargain – formal agreements between the prosecution and defense concerning the
defendant’s offering of a guilty plea in exchange for some form of sentencing leniency
3. Guilty Plea – a defendant’s formal affirmation of guilt to the charges contained in a complaint,
information, or indictment, in which the defendant claims that he or she committed the
offenses listed
4. Not Guilty Plea – a defendant’s formal answer to the charges in a complaint, information, or
indictment, in which the defendant states that he or she has not committed the offense(s) as
charged
5. Nolo Contendere – a plea of “no contest” to charges
6. No Contest – same as nolo contendere in that the defendant does not contest the charges.
The effect is the same as a guilty plea, except the plea cannot be used against the
defendant as an admission in any subsequent civil proceeding arising out of the same
offense.
7. Prosecutorial Discretion – the decision-making power of prosecutors based upon the wide
range of choices available to them in the handling of criminal defendants, the scheduling of
cases for trial, and the acceptance of bargained pleas
8. Arraignment – the official proceeding in which a defendant is formally confronted by criminal
charges and enters a plea, and a trial date is established
9. Alford Plea – a guilty plea by a defendant who claims innocence
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Defense Scenarios
Imagine you are a defense attorney who works for an area legal aid agency. Your job is to
represent persons charged with crimes who cannot afford to hire their own attorneys. You are
assigned to a very high number of cases. Your salary does not change with the number of
clients you serve.
You realize that plea bargaining is an extremely useful process for obtaining benefits for your
clients that they may not receive if they go to trial. You also know and advise your clients that no
plea bargain between you and the prosecutor is valid until the client has voluntarily and
intelligently agreed to it after understanding the consequences. The clients, however, want to
know your recommendation and generally, but not always, follow it.
You know that the prosecutor has the authority to decide what criminal charges to bring against
the defendants, whether to even bring criminal charges against defendants, whether to dismiss
criminal charges, whether to reduce a criminal charge to a lesser charge, and what
recommendations to make to the judge – to impose an exceptionally high amount of
imprisonment, or to impose a sentence in the standard range set by the state legislature. When
there is more than one count or charge, each charge may receive a separate term of
imprisonment. The prosecutor can recommend that these terms of imprisonment run at the
same time or back-to-back (for example, when two terms of three-months’ imprisonment are
imposed by the judge – if they run together, the defendant serves three months in jail; if they run
back-to-back, the defendant serves six months).
Directions – In the cases that follow, you will approach the prosecutor to negotiate the charge
and/or sentence. In each of the fact patterns below, the wishes of the client have been set out.
However, the client may agree to some other proposal. In none of the cases does the client
want to go to trial.
Remember that you, as the defense attorney, need to give a rational argument to the prosecutor
as to why the charges should be reduced or dismissed or sentencing recommendations be
given. The prosecutor will not just grant a request to dismiss charges or make a sentencing
recommendation without a rational basis for doing so.
Case One –
Ward has been charged with robbery. He was arrested for robbing a furniture
store clerk after an informant notified the police that Ward had admitted to
committing the robbery. Ward has no prior history of criminal activity.
Defendant's wishes – The client wants the charge lowered to second degree
robbery, and a prosecution recommendation for six months imprisonment.
Case Two –
While being held for shoplifting at a thrift store by two store employees, Chester
pulled a knife and stabbed both of them. The two employees had several stab
wounds that were life-threatening, and required surgery and several days in the
hospital.
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Chester is charged with two counts of aggravated assault. The knife has not been
recovered as a piece of evidence.
Defendant's wishes – The client wants the charges dropped to simple assault,
and the imprisonment time to be served for both charges at the same time.
Case Three – Watson committed at least five burglaries in January and February. She is
charged with two counts of burglary. The search of Watson's apartment turned up
items that had been taken during the two burglaries. There is a possible question
as to whether or not the search was legal.
Defendant's wishes – Watson wants the counts reduced to burglary in the second
degree, an agreement that the prosecutor will not bring charges on the other
three burglaries, and a recommendation that the times of imprisonment for each
charge be served together.
Case Four – A woman who was a passenger in his taxi cab charged David with sexual assault.
David totally denies the charge, but there is very strong evidence against him.
Defendant's wishes – David is willing to plead guilty to indecent exposure,
although he still claims he is innocent.
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Prosecutor Scenarios
Imagine you are the prosecutor representing the government in enforcing criminal law. You
have a very heavy case load. At most, you can go to trial in one of the following four cases.
Therefore, you must work out plea bargains for at least three of the defendants in the cases
below.
As a prosecutor, you are able to decide what the criminal charges are against the defendants,
whether to even bring criminal charges against the defendants, whether to dismiss criminal
charges, whether to reduce a criminal charge to a lesser charge, and what recommendations
you might make to the judge – to impose an exceptionally high amount of imprisonment or to
impose a sentence in the standard range set by the state legislature. When there is more than
one count or charge, each charge may receive a separate term of imprisonment. You can
recommend that these terms of imprisonment run at the same time or back-to-back (for
example, if two terms of three-months’ imprisonment are imposed by the judge – if they run
together, the defendant serves three months in jail; if they run back-to-back, the defendant
serves six months).
Directions – In the cases that follow, you will be approached by the defense attorney to
negotiate about the charge and/or the sentence. Negotiate as you deem is necessary.
Case One –
Ward has been charged with robbery. He was arrested for robbing a clerk at a
furniture store after an informant notified the police that Ward had admitted to
committing the robbery. Ward has no prior history of criminal activity.
Case Two –
While being held for shoplifting at a thrift store by two store employees, Chester
pulled a knife and stabbed both of them. The two employees had several stab
wounds that were life-threatening. The injuries required surgery and several days
in the hospital. Chester is charged with two counts of aggravated assault. The
knife has not been recovered as a piece of evidence.
Case Three – Watson committed at least five burglaries in January and February. She is
charged with two counts of burglary. The search of Watson's apartment turned up
items that had been taken during the two burglaries. There is a possible question
as to whether or not the search was legal.
Case Four – A woman who was a passenger in his cab charged David with sexual assault.
David totally denies the charge, but there is very strong circumstantial evidence
against him.
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Name_____________
_____
Date_____________
_______
Plea Bargaining Quiz
Choose the correct answer(s)
1. _____ Which of the following is a defendant’s formal affirmation of guilt in court to
charges contained in a complaint, information, or indictment claiming that they
committed the offenses listed?
a. guilty plea
b. not guilty plea
c. nolo contendere
d. no contest plea
2. _____ Which of the following is a defendant’s formal answer in court to the charges in a
complaint, information, or indictment, in which the defendant states that he or she
has not committed the offense(s) as charged?
a. guilty plea
b. not guilty plea
c. nolo contendere
d. no contest plea
3. _____ Which of the following means no contest?
a. guilty plea
b. not guilty plea
c. nolo contendere
d. none of the above
4. _____ Which of the following is the same as nolo contendere, in that the defendant does
not contest the charges? The effect is the same as a guilty plea, except the plea
cannot be used against the defendant as an admission in any subsequent civil
proceeding arising out of the same offense.
a. guilty plea
b. not guilty plea
c. nolo contendere
d. no contest plea
5. _____ Which of the following is a guilty plea by a defendant who claims innocence?
a. Oxford plea
b. Alabama plea
c. Alford plea
d. Allsups plea
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6. _____ The official proceeding in which the defendant is formally confronted by criminal
charges and enters a plea is called what?
a. Preliminary hearing
b. Arraignment
c. Oral argument
d. Booking
7. _____ Prosecutors do not have discretion in accepting bargained pleas.
a. True
b. False
8. _____ A trial date is established at the arraignment hearing.
a. True
b. False
9. _____ A plea bargain is a formal agreement between the prosecutor and defense
concerning the defendant’s offering of a guilty plea in exchange for money.
a. True
b. False
10. _____ An accused’s response to criminal charges against him or her is always guilty.
a. True
b. False
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Plea Bargaining Quiz Key
1. A
2. B
3. C
4. D
5. C
6. B
7. B
8. A
9. B
10. B
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Name_______________________________________
Date_______________________________
Discussion Rubric
Objectives
4 pts.
Excellent
3 pts.
Good
2 pts. Needs Some
Improvement
1 pt. Needs Much
Improvement
N/A
Pts.
Participates in group discussion
Encourages others to join the
conversation
Keeps the discussion progressing
to achieve goals
Shares thoughts actively while
offering helpful recommendations to
others
Gives credit to others for their ideas
Respects the opinions of others
Involves others by asking questions
or requesting input
Expresses thoughts and ideas
clearly and effectively
Total Points (32 pts.)
Comments:
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Name______________________________________
Date_______________________________________
Individual Work Rubric
4 pts.
Excellent
Objectives
3 pts.
Good
2 pts. Needs Some
Improvement
1 pt. Needs Much
Improvement
N/A
Pts.
Follows directions
Student completed the work as directed,
following the directions given, in order and to the
level of quality indicated
Time management
Student used time wisely and remained on task
100% of the time
Organization
Student kept notes and materials in a neat,
legible, and organized manner. Information was
readily retrieved
Evidence of learning
Student documented information in his or her
own words and can accurately answer questions
related to the information retrieved
*Research/Gathering information (if relevant)
Student used a variety of methods and sources
to gather information. Student took notes while
gathering information
Total Points (20 pts.)
Comments:
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Name:____________________________________
Date:_____________________________
Presentation Rubric
4 pts.
Excellent
Objectives
3 pts.
Good
2 pts. Needs Some
Improvement
1 pt. Needs Much
Improvement
N/A
Pts.
Topic/Content
 Topic discussed completely and in-depth
 Includes properly cited sources (if used)
Creativity/Neatness
 Integrates a variety of multimedia effects
to create a professional presentation
(transition and graphics) or appropriate
visual aid used
 Title slide, table of contents, bibliography
are included, using acceptable format
Mechanics
 Grammar, spelling, punctuation, and
capitalization are correct
 Image and font size are legible to the
entire audience
Oral Presentation
 Communicates with enthusiasm and eye
contact
 Voice delivery and projection are
dynamic and audible
Audience Interaction
 Presentation holds audience’s attention
and relates a clear message
 Clearly and effectively communicates the
content throughout the presentation
Total Points (20 pts.)
Comments:
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Name______________________________________
Date_______________________________________
Research Rubric
4 pts.
Excellent
Objectives
3 pts.
Good
2 pts. Needs Some
Improvement
1 pt. Needs Much
Improvement
N/A
Pts.
Question/goal
Student identified and communicated a question
or goal of the research
Research/Gathering information (if relevant)
Student used a variety of methods and sources
to gather information. Student took notes while
gathering information
Conclusion/Summary
Student drew insightful conclusions and
observations from the information gathered.
Information is organized in a logical manner
Communication
Student communicated the information gathered
and summary or conclusions persuasively.
Student demonstrated skill in the use of media
used to communicate the results of research
Reflection
Student reflected on the importance of the
research and its potential application
Total Points (20 pts.)
Comments:
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Name:____________________________________
Date:_____________________________
Role Play Rubric
Objectives
4 pts.
Excellent
3 pts.
Good
2 pts. Needs Some
Improvement
1 pt. Needs Much
Improvement
N/A
Pts.
Relates to the audience
Provides fluent rendition of the
scenario
All required content is included
Acts with feeling and expression
Varies intonation
Presents characters appropriately
Gives the scenario its full range
Breaches are easily identified
Total Points (32 pts.)
Comments:
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Name:____________________________________
Date:_____________________________
Writing Rubric
4 pts.
Excellent
Objectives
3 pts.
Good
2 pts. Needs Some
Improvement
1 pt. Needs Much
Improvement
N/A
Pts.
The writing has all required parts from
introduction to conclusion in smooth
transition.
The writing is interesting, supportive,
and complete.
The writing demonstrates that the
writer comprehends the writing
process.
Accurate spelling, grammar, and
punctuation
The content of paragraphs
emphasizes appropriate points.
The writer shows an understanding of
sentence structure, paragraphing, and
punctuation.
All sources and references are clearly
and accurately documented.
Total Points (28 pts.)
Comments:
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