View source for Persuading defendant to accept plea bargain

==Persuading defendant to accept plea bargain==

As is true in all aspects of client representation, it is the defendant who makes the ultimate decision about a plea to a criminal charge. It is the defendant who serves time, pays the fine, and suffers a change in his or her record. Defendants are generally suspect of the legal system, as their experience seldom brings them in contact with it, except in uncomfortable and undesirable situations. Therefore, a defendant may be extremely resistant to being told that the best strategy is a plea. He or she may feel that the prosecution is being discriminatory in that the defendant's peers are not being brought to trial.[[FN81]]

If the computer crime statute is new, the defendant may feel that he or she is being used as a guinea pig to test a previously untested law. There may even be a feeling that the plea is the result of a deal hatched between the prosecution and the defense with its goal being to "railroad" the defendant. The most important thing to realize about these feelings is that they are real for the defendant, and the defendant should have the opportunity to express his or her feelings before being expected to make a commitment to a course of action. A decision to plead is a major decision in a client's life. Therefore, it should not be surprising if he or she is slow to see the wisdom of counsel's suggested path.

To the extent that defendants in computer crime cases are less socially sophisticated than other criminals, a plea bargain may be even less acceptable to the defendant. Such a situation requires more patience on counsel's part in explaining the reasoning behind the suggestion to plead guilty, and more tolerance of the defendant's need to express his or her resistance before accepting the suggestion. Counsel may want to adapt a "risk-analysis" explanation in which he or she defines the risks the client faces in going to trial, and compares them to the risks if a guilty plea or a plea of no contest is entered. Counsel may even present all the facts as he or she sees them to the client and before giving a recommendation as to a plea, ask the client what he or she thinks is the most rational decision. If the risk is great, and the punishment that can be bargained for is light, the client may chose on his or her own to plead guilty.

It is also advisable to obtain the client's permission prior to negotiating with the prosecutor and assuring the client that no arrangement will be entered into without the client's consent.

The defendant will have to make a knowing and intelligent waiver of his or her rights prior to the court accepting a plea bargain;[[FN82]] therefore, counsel should be aware of the importance of communicating to the client exactly what it is the client is waiving or forfeiting.

As the client's representative in the criminal justice system, defense counsel has a place of great importance to the client. The client may feel alienated if he or she does not have the opportunity to express his or her feelings to counsel.

In discussing the consequences of a plea, it is helpful to tell the client that a plea of guilty is not necessarily going to ruin his or her career. There are several cases of computer criminals becoming computer security consultants, and benefiting from the notoriety of involvement in a computer crime.[[FN83]] However, other defendants have reported that their notoriety stood in the way of their careers.[[FN84]]