Plea agreements can be negotiated before charges are filed. It is quite common for a someone who learns they are the subject of a criminal investigation to retain counsel prior to the time charges are filed. This is often referred to as "pre-indictment representation." The same is true of persons who, knowing that others are under investigation, fear they will ultimately become a subject or target of the inquiry.
If you have learned you are under investigation, or fear you have criminal exposure due to a pending investigation of others, and are interested in a plea bargain, you should retain an experienced criminal defense attorney to assist you.
Provided you truthfully and completely inform your attorney of the factual details of your involvement in the matter, he or she can advise you what, if any, laws you may have violated and the possible penalties.
If your attorney believes you have criminal exposure, he or she can contact the investigating agents and/or prosecutor, advise them you are now represented by counsel and inform them of your desire to resolve the matter prior to indictment. If the prosecutor is amenable, a resolution can be negotiated that includes anything from immunity from prosecution (in exchange for your cooperation in the investigation) to a guilty plea on lesser charges and an agreed upon sentence.
Once charges are filed, only prosecutors, not law enforcement agents, can make a plea bargain. While police frequently encourage people they arrest, particularly in drug cases, to cooperate against others in exchange for a lighter sentence, they cannot guarantee any specific outcome, such as probation, after charges are filed. If the police arrest you and promise not to file charges against you in exchange for your future cooperation, make sure the promise, and the specifics as to what is required of you in exchange, are in writing and reviewed by your lawyer before you agree.
Plea bargains are not a matter of right. They are offered in the discretion of the prosecution. Sometimes negotiations fall through, before an agreement is made. Should that occur, you will want to make sure your 5th Amendment privilege against self-incrimination is protected. This is another reason plea negotiations should be done by through counsel on your behalf.
An early plea bargain can result in lesser charges and a lighter sentence. But, it should not be done without benefit of counsel and your attorney must have an adequate opportunity to assemble the facts and assess your potential criminal liability and defenses before committing to it.
-- Jeralyn Merritt
