The international and national laws contribute to the maintenance of human rights and freedom, and the promotion of their development and respect are being among the basic postulates of the UNO Charter (Herman, 2012). Thus, the internal affairs department of any state performs strict regulation of rights and freedoms. Based on the principles of democracy and humanity, there is a certain procedure called an agreement of the plea that softens a punishment and at the same time resolves litigation.
As a part of the adversarial model of legal systems of different countries, plea bargaining is a kind of institution and an integral part of the criminal process. The set of practices in such countries as the US, Canada, the UK, Pakistan, India, and some European countries shows the effectiveness of this method of solving the criminal cases. Primarily, this is due to the fact that such agreements save both time and resources as in different countries the majority of criminal cases are complex in litigation.
Plea bargaining is a deal in which the defense and the prosecution agree on the resolution of the case by recognizing the guilt of the accused. Such agreement is an admission of the accused in a crime, which is though applied not in all cases of the indictment. That is, in exchange for a reduction in the punishment severity for a crime, the defendant pleads guilty. In the course of this bargaining, the prosecutor and the defendant agree not only on a charge count and qualifications charges, but also on the fine, penalty, and other aspects of the case.
This kind of agreement is often used in criminal proceedings in the USA. In addition, it can be applied even at the stage of preliminary hearing, when a judge considers the details of a particular case, and all participants of the criminal process evaluate the provided evidence. It should be noted that the possible consequences and specific promises are not regulated by law and do not appear in the written version of the agreement. In addition, at this stage the judge receives recommendations from the prosecutor about what punishment procedure to apply.
The result of the deal is an order stating the voluntariness of a confession of the defendant, the understanding of the charges against him or her, the consequences of such a declaration, and the entry of this statement into force (Roberts, 2013). Thus, the deal means that the defendant waives the right to a jury in the trial. Nevertheless, this agreement replaces the jury’s verdict of guilt. In this way plea bargaining eliminates disputes between the prosecutor and the defense of the accused.
Like any adversarial process, the legal proceeding is associated with some risk. It affects the professionalism of the lawyer and the prosecutor. Sometimes it is difficult to identify the facts; therefore, these transactions are the means to get rid of this risk as each of the sides is interested in this.
An initiative to make a deal may come from the accused. The following situation can vividly demonstrate this. The trial for murder can be completed by a plea bargain if the suspect pleads guilty before an arraignment and is ready to give up criminal activities. In this case, it is necessary to allocate a separated element of the transaction – the duty and/ or the ability of the accused to incriminate another person in a criminal offense. According to this criterion, plea agreements are classified by a group, which contains the obligation to cooperate in the disclosure of criminal offenses. In addition, they refer to the agreements that do not contain obligations of the accused to cooperate. It binds the parties to register all aspect of the penalties execution or other results of plea bargaining as well as any subsequent actions on the mandatory basis. In this case, the suspect may be released from liability if he or she is ready to cooperate with the prosecutor.
The adoption of the agreement and its outcomes may also depend on the measures that are applied to a particular offense. In the American legal practice, where such transactions are common, the seriousness of the charges affects the possibility to solve the problem. Thus, if the crime is serious, the conditions of a plea bargain are less favorable, and it is less likely that this plea could be applied (Sales & Krauss, 2015). The crimes against people are more settled with a plea bargain than the crimes against property. In individual cases a plea bargain is not allowed because of their notoriety, widely known as cruelty.
There is a completely different category of crimes that are resolved through plea bargaining. They include minor offenses, where sanctions are being the fine and/or the imprisonment up to one year. The resolution of such cases is limited by the plea bargain document. In addition, people who have committed a non-violent offense and have no more than two prior convictions are not deprived of their liberty.
The result of the application of the plea agreement is determined by the roles of those who participate in it and their intentions. There are certain categories of people who can bargain. Thus, the bargainers are the barrister, the prosecutor, the victim, the accused, and the court.
The role of a barrister at the initiation and execution of successful plea bargaining is to review the charges. It is important to take into account the existence of previous convictions as they can play an important role in the selection of further actions: to take a legal action or make a bargain. Since the role of the barrister is the protection of the accused, formally he or she does not arrange such a deal. However, the suspect/ accused relies on the advice and the guidance of his or her defenders. The US Justice Statistics suggests the defendants with criminal records are less likely to agree on the conduct of the trial than those who committed a crime for the first time because the former know about the benefits of plea bargaining. However, repeat offenders receive less generous terms of plea bargaining.
The evidence of prosecution also influences the decision about the possibility of making a plea bargain or a trial. Thus, the weaker a position of the party on the evidence is, the bigger the possibility to make a deal is. If a prosecutor or a barrister has strong or conclusive evidence, then the probability of his/her victory in court is very high, so he/she does not accept the offer of plea bargaining. In this case, there is an inverse relationship between the strength of the evidence and the possibility of plea bargaining. The likelihood of a conviction for a barrister’s client also varies. It should be taken into account that the accused has a certain insight about the possible prosecution evidence available to the prosecutor. In addition, the prosecutor is obliged to inform the defense about the intention to use it to expose the accused. In addition, there is a “policy of open folders” that allows the defensive side to be fully familiar with the existing case file from the prosecutor. This can be an informal meeting of the charging side and the barrister where he/she is confidentially acquainted with the contents of the evidence of guilt. These circumstances contribute to the application of plea bargaining, especially when there is strong evidence. Moreover, the barrister can reasonably assess of the prosecution.
In discussing the agreement with the prosecutor, the defender is trying to improve it, focusing on mitigating the evidence concerning the measures of the crime severity and criminal record of his/her client. This is done after the defender provides his/her assessment of the case, which takes into account these factors and decides what the conditions and opportunities of the plea agreement application are. The existence of mitigating circumstances is an integral part of plea bargaining, and it should be taken into account when forming a plea bargain decision. Applying their skills to resolve the conflict in the most effective way, both sides make the final decision. The opportunity to make a deal eases the tension of the trial in the administrative unit.
The role of the prosecutor is significant and requires active participation in applying the decision to charge, especially in issues with serious offenses. The prosecution is made by a statement that contains an indictment. In this case, the prosecutor considers the alleged facts or actions and determines appropriate charges. Guided by the ability to “win the case” and the anticipation of plea bargaining negotiations, the prosecutor often overstates charges. It follows that, pushing the highest possible charges, the prosecutor is preparing a place to retreat in case of negotiations about the admission of guilt. The charges can be laid disproportionately to the criminal act. This is a common phenomenon, especially in the American legal practice. However, the American Bar Association recommends justifying the evidence and avoiding any accusations without evidentiary support for the offense. The prosecutor should be guided by strong reasoning. During negotiating about the deal, the prosecutor puts the first proposal, which is considered by the defense, which assesses its capabilities. At the same time, there should be a counter-offer put forward by the barrister. Nevertheless, the final decision about the acceptance of the deal is made by the accused.
The role of the victim in a pre-trial process is fundamental. The possibility to conduct and conclude a plea agreement precedes the discussion of the case with the victim. The prosecutor can explain all the aspects of the charges. Even without a final decision about the victim, he/she can have another opinion that differs from the prosecutor’s one. There are things that do not have a specific victim (organized crime, environmental emissions from a facility, etc.), and the society is considered as a victim. In these cases, the prosecutor takes his/her own decision on using plea bargaining.
The court provides guarantees of legality and justice in the procedure of plea bargaining application. The implementation of these functional responsibilities is presented by the court during the negotiations and voluntary obligations that assess the guilt of the accused person (Perez, 2011, p. 1534). In the first case, the court is obliged to ensure a fair result, and in the second case, it has to make sure that the person understands the offense and guilty statement, and his/her rights and freedoms are respected. In all cases of plea bargaining, the court, as well as the defense and the prosecution, has to stick to the presumption of innocence. This will allow fundamental legal principles carry out the procedure of plea agreement and avoid the negative consequences of errors and corruption.
The presence of the court during negotiations regarding the decision making occurs in a varying degree. Through the active influence of both sides, the court aims at resolving the matter in the right way. In this way, the court points to the weak or strong defense and prosecution and encourages a decisive action. Judges within their power are influence the process in order to encourage a quick solution of the issue and the case.
There is another form of plea agreement. It is the promise of punishment that will be associated with the behavior of the accused when the one will be arrested. One of the conditions of such plea agreement requires the defendant to take particular measures to prevent new violations. Examples of such mandatory measures in a conditional agreement are community services that have to be applied to victims. It should be noted that the court’s decision on the conditional agreement might have the opposite effect. In this case, the court revokes the decision if the defendant does not comply with the prescribed actions.
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The decision is taken by the court to intervene at any stage of procedural relations between the defense and prosecution in order to monitor the achievement of agreement on legal grounds. The court is also included in the process, when the question about the punishment rises. Thus, this aspect is controlled by the court as it has the right to influence the deal at this stage of the discussion of plea bargain application (Kemp, 2014, p. 427).
Different aspects of the legislation of different countries are normalized by the influence of the court on a deal. However, this depends on different factors, such as the seriousness of offense, the court experience, the workload of the court, the participation of defense and the prosecutor, and, of course, the possibility of an agreement.
There are different forms of plea bargaining. Normally, such an agreement is made in a written form. The procedures of the court imply the existence of an agreement in the form of a memorandum and/or a letter to the barrister. The oral form of plea bargaining could be applied only in the open court, where these positions are transmitted by the protocol.
The final step of the procedure is the court’s decision. At this stage, the court imposes a punishment, which is defined by the plea and the conditions of a plea deal. The accused taken into custody according to the applied punishment is exempted under the supervision or is set completely free.
In the scientific and legal circles, the attention is focused on the wrong perception of such plea bargaining as a procedure during which the accused or suspected confess the guilty in the crime. The punishment as well as the facts and circumstances of the crime that will not be challenged by the sides during the court should also be deliberated. In other words, plea bargaining constitutes the entire agreement of both sides of the process about the guilt of the accused with all subsequent items written in the document. In some countries, there is another misconception associated with the plea deal; this is the reconciliation agreement between the suspect or the accused and the victim. It is particularly important that the reconciliation agreement is used in case of criminal offenses of medium and low severity of a crime and in the cases when there is a damage caused exclusively to public or state interests.
To sum up, it should be noted that in different countries plea bargaining is differently interpreted and used. However, as a form of legal relationship, it should be based on a legal framework and clearly delineate its potential and destination. Plea bargaining should be formally confirmed and pursued by objectivity and truth.