Confessions, Trials, and Fiction

A writer this week asked about the use of confessions in the criminal trial process. A character in the writer’s plot has signed a confession admitting facts necessary for conviction of a crime. The writer wanted a short courtroom scene and a quick conviction. For that, the writer needs a plea bargain.

Plea Bargains

The fastest way to conviction and sentencing is a plea bargain, which is an agreement between a defendant and a prosecutor where the defendant agrees to plead guilty in exchange for an agreement from the prosecutor to make changes to the charge against the defendant and/or recommend a certain sentence to the judge.

There are two types of plea bargains.

  1. Charge Bargaining – If defendant will plead guilty, the prosecutor will agree to drop one or more charges against the defendant and/or reduce a charge to a lesser offense.
  2. Sentencing Bargaining – If defendant will plead guilty, the prosecutor will agree to make a favorable sentencing recommendation to the judge.

Most criminal cases are handled by plea bargains. Only about 2% of felony cases go to trial, and 5-6% of state criminal cases. Plea bargains are popular because prosecutors and courts save time and resources, and defendants have the potential benefit of reduced charges and sentencing for resolving the matter swiftly.

Plea Bargaining Process

Plea bargains can happen at almost any stage of the judicial process, whether shortly after the defendant is arrested, right before the verdict is announced, or even after conviction while the case is on appeal.

Typically, plea bargains happen privately outside of court when either the prosecutor or the defense counsel suggests a deal. Depending on the case and facts, the negotiation process can be long or swift. The defendant must accept or reject the plea bargain. Often, defendant’s lawyer will suggest strongly the defendant accept the plea bargain, take the lesser charge, and avoid the potential for heavier sentencing at trial. The judge usually has no formal role in negotiating the plea bargain. However, some judges will push the idea of plea bargaining and even suggest what type of sentencing they would accept.

Trial Process

When a plea bargain has been arranged, a court hearing is scheduled to inform the court. While the prosecution has control over which charges to bring against a defendant, the judge does not have to rubberstamp the sentencing bargain. Most prosecutors know their judges well. Past experience informs a prosecutor if a judge will agree to a particular sentencing from a plea bargain. Judges consider:

  1. Whether a plea bargain sentencing is fair considering the charges and facts.
  2. The seriousness of the crime.
  3. Defendants record, if any.
  4. Whether the recommended sentencing is consistent with other cases the judge has decided.

A few other things a judge might consider, which can help a writer add drama and conflict to the plot:

  1. Defendant’s attitude and remorse.
  2. Whether the defendant appeared before the judge in a previous case.
  3. Community outrage.
  4. A need to make an example of the defendant.
  5. Racial and ethical biases.
  6. Or even the judge’s personal life or a bad lunch.

Once the judge has been informed in court of the plea bargain and accepted the deal as fair (or suggested changes that all the parties agree to), the judge will hear the guilty plea in court so it becomes part of the record.

Before the judge accepts the plea, the defendant will testify to the facts underlying the guilty plea so the judge knows the defendant has committed the offense to which they are pleading guilty. The judge will want to confirm the defendant understands the conduct that resulted in the charges, the consequences and sentencing of the plea bargain versus the potential consequences and sentencing at trial, and the rights the defendant is waiving by the guilty plea (like the right to a jury trial and the right to confront and cross-examine their accuser).

The process of confirming defendant’s understanding is usually a long list of questions from the judge to the defendant that the defendant answers yes to until the judge is satisfied. Then the plea deal is accepted and the defendant is sentenced (either at the same time or at a later date). Sometimes a judge will consult with a victim, probation officer, or listen to arguments by counsel before formally ruling on the defendant’s sentence.

Confessions and Not Guilty Pleas

If the defendant has confessed but pleads not guilty, the defendant will have a trial unless a plea bargain is struck at some point. Depending on the facts, the defense strategy might be to exclude the confession from evidence as inadmissible. Maybe the confession was involuntary due to physical or mental coercion. Maybe the defendant’s Miranda rights were violated. Any tactic an officer uses to gain a confession that undercuts a defendant’s free will makes a confession involuntary and inadmissible.

Two side points to remember:

  1. If a confession is given while the defendant is intoxicated or impaired, usually courts consider the confession voluntary.
  2. A confession is not enough to convict a defendant. Some type of corroborating evidence is necessary, like an eyewitness to the crime, or physical evidence that someone committed the crime in question (not necessary the defendant). In some states, the additional evidence must support the confession was trustworthy or reliable. The reason for the additional evidence is to avoid a false confession.


Photo Credit: glennshootspeople | Visualhunt | CC BY-NC

Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.

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