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Why do defendants have up until the jury is seated to make a plea bargain?

Starke, FL |

Here’s an idea that I believe will greatly reduce court backlogs, save taxpayers money, bring justice more swiftly and give jurors more meaningful service experience.

Move the deadline for defendants to take a plea bargain to one week before jury selection begins. Depending on the definition of “when jury selection begins” that could be before jury summons are mailed. If the plea bargain is made at that point, then the selection process, printing and mailing would be saved, as well as the jury selection process, the voir dire and the assembling for trial.

Right now, the defendant has up until the moment the jury is seated. Why not have the trial, and give the defendant up until the jury delivers the verdict?

It seems such a waste, and a law I would like to see changed.

Attorney Answers 7


  1. Actually, a Defendant can take a plea deal after a jury returns a verdict. And your "idea" is already practiced in some form by most judges. The problem is that jurors are not called for one case, they are called for the possibility to sit on any 1,000 possible cases that could go to trial. Plus, there are only so many days available for trial a year. So your showing up and making a defendant see that "sh!t just got real" does a lot more to make trials resolve than some arbitrary deadline that once passed forces people to go to trial, a trial that could last a week..\ Otherwise a judge might be in trial every day rather than resolving the 1,000s of other cases on the docket.


  2. In addition to what Mr. Hornsby said, sometime the prosecutor holds out until the last minute to make the best deal. The state knows that the vast majority of defendant's enter a plea and yet they think that if they wait just a little longer the defendant will take an unreasonable offer. Part of the problem could be resolved by the state accurately evaluating the case, and making a plea off more appropriate earlier in the case.


  3. I agree with the other responses. The jury summons and jury selection do not occur just for one individual trial. They are present for the possibility of a number of trials going forward. In court houses that hear both criminal and civil cases, a juror could be sitting on a criminal or civil case. Additionally, if a defendant did decide to plea after the deadline, but before the trial and could not, he or she would be forced to go to trial and this would be a waste of time and money as well. Better for the defendant to plea sooner better than later.


  4. My colleagues are all both accurate and well-spoken. Its a fact that the vast majority of criminal cases are resolved by way of plea bargain (its well into the 90th percentile). While I do not have handy statistics as to the timing of pleas, my 21+ years of experience as a criminal defense litigator is the basis of my guess that, of all of the cases that plea, probably 90+% of the time those pleas occur well before a jury is ever summoned into a courtroom. In my personal experience (noting that I went directly into private practice and that many {former} PD's and ASA's probably have different stats) I have had a reasonable number of cases plea on the day of trial (although still a smaller precentage of my carreer load of cases), but I have only had a handful of cases plea when a jury was actually seated inside of the courtroom (although I have had a few more plea with a jury seated outside of the courtroom) and only twice have I had a case plea during the course of a trial.

    That said, I've also been summonned to jury duty and, although I've been excused both times (I don't know why, I'd surely help speed along the deliberations...) I spent enought time in the duldrums to sympathize with the plight of Joe / Judy Average Juror. Moreover, as a Florida litigator (in State Court in Florida lawyers are permitted to question - or voir dire - potential jurors) I've interacted with plenty of jurors, both as a panel and individually, and that gives me another perspective on their situation. In that light your suggetion that the process should be reformed to make it more convenient, or businesslike, for potential jurors, is not wihtout merit.

    Like you, I'm all about greatly reducing court backlogs, saving taxpayers money, bringing justice more swiftly and giving jurors a more meaningful service experience, but I don't know that your proposed means will accomplish your worthy ends. It is true that in some cases there is a strategic decision to wait until the very last minute to take a plea (this applies to both the State and the defense), but it is also true that litigation is fluid. Things happen during the course of criminal cases that can change up the equation, and sometimes significantly enough for the case to either fall apart or to sufficiently tilt toward one side so as to cause someone to fold. (In this regard you can liken it to a poker game (or a song about gambling...): "You've got to know when to hold 'em, Know when to fold 'em, Know when to walk away, Know when to run, You never count your money, When you're sittin' at the table, There'll be time enough for countin', When the dealin's done").

    Not withstanding the lawyer-stuff (and the Kenny Rogers tribute), and with respect to you and your suggestion, given the nature of criminal cases, and in my opinion, the deadline approach would likely have a counter-effect (increasing the toll on the system - including jurors, who would be needed in greater numbers for more trials). But I believe that there are things that can and should be done to make the juror experience an overall better experience, and I know that my colleagues (on both sides of the courtroom), the judiciary and the supporting players all agree that whatever can be done in that regard should be done.

    I for one appreciate your taking the time to voice both concern and opinion and to call for reform (even if I do disagree - sorry - with the particular suggested means), and I wish that more folks would give consideration as to how to improve the process and experience. I always start my voir dire by asking the panel a group question (unless the Judge or State Attorney ask first - which sometimes they do): By a showing of hands, who here, when they first opened their mail and saw their juror summons, was happy and excited about the prospect of coming down to the courthouse and serving as a juror?

    Jury duty is both a privilege and a responsibility, but that doesn't mean that it can't be fun!


  5. Legally they don't. But often, a prosecutor will make that claim to pressure a defendant to take a plea "bargain." Tactically, unless the government's case is complete garbage, once the trial starts the prosecution wont want to negotiate a plea. From their perspective, there is no reason to bargain if you have made all the witness come to court, and had a panel of jurors pulled.


  6. You want to save everybody some money? Pass a law that requires the State Attorney's Office "shall" pay attorneys' fees and court costs of defendants who are acquitted at trial. The process gets hung up and resources are wasted because of a handful of prosecutors and/or their supervisors who are just irrational government employees unable to see the big picture. If their offices were on the hook for their bad judgment calls in taking loser cases to trial, they'd offer better deals to resolve the right cases pretrial, allowing more resources to go after the real bad guys.


  7. There have been many times in my career where State Attorneys believe that they have a strong case going into trial. However, after a witness or two testifies, the State's case begins to fall apart and the original plea offer can go from bad to very good. This can sometimes be a great incentive to resolve a case before a verdict comes back from the jury.

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