How to approach plea-bargain negotiations: a guide for new lawyers
By AdvocateDaily.com Staff
While plea negotiations should be part of every criminal defence case, law schools provide only an academic sense of how they’re conducted, and offer little practical guidance, says Ottawa criminal lawyer Céline Dostaler.
”For someone who is stepping into the criminal law field, this is an important consideration and something we’re not taught in school,” says Dostaler, founder of Céline Dostaler Professional Corporation.
“In every case, you have to talk with the Crown to see if you can resolve the matter,” she tells AdvocateDaily.com. "Even if there’s a stalemate, and the client says ‘I didn’t do it,’ and it needs to go to trial, we still have to be able to sit down with the Crown and say this is why it’s going to trial, these are the issues, and this is what’s going to happen.”
There are four purposes to plea negotiations, Dostaler says:
- To find out what the Crown is thinking.
“If we go to trial and lose, what is the Crown going to be seeking? At least the client will know the worst-case scenario,” she says. “It’s vital that we’ve looked at the Crown’s file to see the evidence they will be presenting, and weigh it against what the client says happened.”
- To show the Crown any relevant information they don’t have, including the impact a sentence or fine would have on the client, or what their narrative is about why they acted as they did.
For example, she says if the case is a fraud against an employer, was it because the individual had gambling debts? Was it inadvertent? Did they have a sick family member who needed expensive treatment?
“Although it’s not an excuse, it’s important to understand why the person acted as they did,” Dostaler says. “Often, someone comes to me who’s been charged with fraud, and it’s a first offence. They’re freaking out. ‘I did this, I know it was wrong, but I did it because I needed the money.’ We need to be able to talk to the Crown and explain the situation. That gives us a bit more negotiating power when we’re looking at a guilty plea.”
- To put a human face on the client, “and to provide an account of what’s going on in that person’s life that may have caused them to act as they did.”
- To show the Crown where there are weaknesses in its case.
"Sometimes police officers claim they have a really strong case," Dostaler says, but the client can provide a twist. She points to an example of a matter she handled in which the officers said the video evidence showed her client was the one who stole from a store. "But, the client maintained it wasn't them, and that it just looked like them," she says.
Or in a sexual assault case, where someone has been touched on the thighs or buttocks, perhaps there has been a prior sexual relationship in which that kind of touching was allowed, she says.
One of Dostaler's clients was charged with sexual assault for touching a woman's buttocks while both were on bikes. “He said he was trying to push her up the hill, but she said she was violated, and filed a sexual assault allegation with police.”
Through negotiations, Dostaler was able to show the Crown and the judge that his intention was not sexual. He thought she was having difficulty and was trying to help her.
“You need to understand your client’s perspective,” she says. “However, if you randomly go to the Crown and say he was pushing her up the hill, and that’s not what your client says at trial, it’s not going to help.
"Plea negotiations cannot be used for trial purposes. They’re done in camera and not for the trial itself, but lawyers are still held to a standard and we cannot put lies to the court," says Dostaler.