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How is it prosecutors can threaten you with a longer sentence if you DON'T plead guilty and are found guilty at trial

Boise, ID |
Attorney answers 2


If you reach a plea agreement with the prosecutor, assuming the judge accepts the plea agreement, then you know what your sentence will be. If you go to trial and are found guilty, there will be a sentencing phase where the prosecutor will typically argue for a harsh sentence and your attorney should point out mitigating factors, reasons that you should receive a lesser sentence. Therefore, it is a matter of fact that you might receive a harsher sentence if you are found guilty, but you might not, it depends on the facts of your case and information about you.

Depending upon how the information is being presented by the prosecutor, it could be prosecutorial misconduct. If the prosecutor is merely pointing out that you could receive a longer sentence, that is one thing, But if the prosecutor is stating that if you exercise your constitutional right to make the state prove every element of its case beyond a reasonable doubt, then I, as a lawyer, would point that out to the one who decides the sentence, whether it be a judge or jury. In my opinion, that sort of threat abuses the constitutional system that we live under and due process of law that you are entitled to.

Good luck to you, and please remember to designate a best or helpful answer.



Is it considered prosecutorial misconduct if the prosecutor tells your PD that if you don't plead guilty to a charge that you claim you are innocent of, that they will file habitual offender charges on you

William J. O'Connor

William J. O'Connor


You asked if it is "considered prosecutorial misconduct." Be careful to read this answer thoroughly or you may misinterpret it. The issue is not whether it is "considered" prosecutorial misconduct, but by whom it is considered and whether you can prove it. There is clear case law that exists that states that a prosecutor's job is not merely to convict, but to ensure that justice is done. That is rarely followed in this day and age because many prosecutors' offices track conviction rates of their employees and usually perceive that higher conviction rates = better job performance by the prosecutor. But nothing could be further from the truth. If you haven't already, you should express to your PD your concerns that your constitutional rights under both the United States and Idaho Constitutions are being trampled because of the prosecutor's threats. I would argue that those threats are coercion at best and possibly extortion under Idaho Code Section 18-2403(2)(e). The real problems that you face are twofold. One is whether your PD will have the guts to stand firm for you because, to the best of my understanding, the prosecutor's coercive conduct is more of the norm than the exception and the PD may not know what to do about it. The second problem is that you can file a complaint against the prosecutor, but it will most likely fall on deaf ears. I once represented a client in a situation where a cop clearly committed felony extortion against my client. The AG's office didn't want to hear it, nor did the county prosecutor. A letter to the police chief prompted an internal affairs investigation; and of course, internal affairs protected their own by not finding any wrongdoing, although the cop had admitted her threats and actions to me and they clearly constituted extortion. A detective at a higher ranking police agency was shocked to hear about the offending cop's behavior. He knew it was extortion but refused to investigate. So what do you and whom do you turn to when the police and prosecutors protect each other? Until there is public backlash and outrage about this sort of conduct, nothing will change. And the general public is usually either more concerned about not stirring the pot and taking up the cause of ensuring that our judicial system is fair to all; or they are of the false belief that people are guilty until proven innocent, that the cops and prosecutors are the good guys, and criminal defense lawyers are "criminal lawyers," as though all of our clients are criminals as opposed to people accused of crimes. Apathy and false perception keeps the public ignorant and quiet, all while people experience injustices such as you are - and too often far worse. If you are truly innocent, then I encourage you to maintain it and stand firm. Even if you are not, you are entitled to a fair trial by a jury of your peers before a neutral judge or jury, unless you want to accept a plea offer. You should not be extorted by being threatened by having criminal charges filed against you for acting within your legal rights. My best wishes that you reach a favorable outcome.


What you are asking cuts to the heart of why the plea bargain system works. More often than not, when a person is charged with a crime, they're technically guilty of that crime. Morally, whether they should be charged with a crime for the act in the first place is another story however.

Even when the state has an airtight case against a citizen, oftentimes an attorney can get a client a plea deal that results in a sentence more lenient than what you would get had you gone to trial. The reason for this is simple: the state doesn't want to take cases to trial. If a case goes to trial there's always the possibility that the state loses. Therefore, a plea bargain is basically the state living by the saying that "One in the hand is worth two in the bush."

So what the prosecutor is offering isn't what he believes a just punishment necessarily is, but rather getting as close to what he feels in an appropriate sentence while minimizing his risk of losing the case at trial. It then follows that if the prosecutor must prove his case at trial, he's then going to seek what he feels is the appropriate sentence -- something more severe than what he's offering as a plea bargain.

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