You’re My Lawyer: Can You Downgrade My Charges?

If you are charged with a criminal offence, you will probably want the case to be over with as soon as possible, rather than having it drag out from court-date to court-date until it eventually reaches a defended hearing or jury trial – which could take a year or more and be extremely stressful and expensive.

One strategy that can bring about a positive resolution in a relatively short space of time is to have your lawyer pro-actively negotiate the charges.

Depending on the nature of the case and strength of the evidence, your lawyer may seek to:

• Downgrade your charge/s to a less-serious one/s, eg from ‘assault occasioning actual bodily harm’ to ‘common assault’, or from ‘drug supply’ to ‘drug possession’,
• Reduce the number of charges against you, eg 30 fraud charges down to just one,
• Negotiate the amendment of the ‘facts’ that are to be handed-up to the magistrate, which contain the specific allegations against you,
• Achieve ‘concessions’ such as an agreement that you entered an ‘early plea of guilty’ and should be entitled to a full 25% discount on sentence, or
• Obtain immunity for certain offences or a ‘letter of comfort’ for giving assistance to authorities.

Seeking a negotiated outcome can be an important and difficult part of proceedings, where your lawyer will need to carefully consider and discuss with you the best approach.

‘Representations’

The offer that your lawyer will make to the prosecution will normally be contained in a formal document known as ‘representations’.

An experienced criminal lawyer will know what to include in your representations and, just as importantly, what to leave out and ‘keep up your sleeve’.

All of this should be discussed with you before the document is sent out, and you should always receive a copy of your representations.

‘Without prejudice’

One of the good things about this process is that discussions are undertaken ‘without prejudice’. This means that you and your lawyer can enter negotiations relatively openly, without fear of information being used against you later.

And importantly, the option of charge negotiations can be taken up at any point in the proceedings.

Assistance to authorities

In particularly serious cases where several defendants or suspects might be involved, your lawyer might begin looking at the possibility of seeking a deal involving a reduction on sentence for assistance.

What this means is that in exchange for valuable information, sworn testimony or other assistance regarding another person, the prosecution may be willing to give you a ‘letter of comfort’ outlining your assistance, which can be handed-up to the court before you are sentenced for an offence.

It is important to know that your lawyer is there to act in your best interests – and your best interests alone. If your lawyer believes that providing assistance might keep you out of prison or otherwise lead to a significantly reduced sentence, he or she should discuss that option with you.

It will ultimately be for you to decide whether providing assistance is something that you wish to do.

Witness protection

If you have given information against someone who could potentially harm or seek revenge against you, witness protection could be part of your deal.

Witness protection can initially involve provision of security before and after court appearances.

It can also require that you and your family enter into a program that protects you longer-term. Relocating and even changing identity can be possibilities, so this is an option that can’t be taken lightly.

In Australia, these initiatives have a highly successful outcome in terms of safety and the prosecution’s broader goals.

Yet the pros and cons of any deal with police must always be carefully weighed.

Is it worth it?

It is, of course, natural to be unsure about the benefits of negotiating a deal with police.

Your own levels of trust might be damaged from issues in the past, and there can be factors such as loyalty or fear that might affect your decision-making.

Yet when you consider some of the gains that might be made – such as the withdrawal of charges altogether or a lenient outcome – a well-brokered deal can often be worth the time and energy.

Having the professional knowledge of an expert criminal lawyer at your fingertips can make all the difference to the final outcome.

Complex task

Negotiating a deal of any sort with the prosecution can be a complex task.

There is often an enormous amount of legal and factual material that needs to be considered, especially in serious cases which involve a large number of witnesses, expert reports and / or financial documents.

This information must be carefully assessed and the relevant parts used to support the proposed course of action. This can take many hours or even days of work drafting the representations and negotiating an outcome.

Ignore the TV image!

Unfortunately, crime TV shows tend to show a fairly simple exchange between an accomplice and police in a small room, leading to an immediate deal that serves up ‘the bad guy’ to police.

And this supposed deal (undocumented!) seems to emerge magically in a matter of minutes.

Of course – this is TV and not the real world.

Negotiating charges, seeking immunity and/or witness protection are serious situations that often require the careful attention and skill of an experienced criminal defence lawyer.

Beware of your emotions

When someone has been arrested for an offence, their pulse may race and half-developed plans for making a deal may bubble up, causing them to say things to police which they might later regret.

Whether you are hoping not to be charged at all or to be released from the police station on bail, the situation is normally not helped by emotional pleas, vague promises, angry denials or detailed explanations.

It is important to resist speaking with police in the early stages of proceedings, and not to make offers or uncertain concessions without carefully considering the situation.

This is a time when specific expertise – and a cool head – can be crucial. Seek the services of an expert criminal lawyer and let them do the talking for you.