Criminal plea bargaining: what is it and when is it useful?
Ordinarily, an Italian criminal proceeding begins with a report of a crime and progresses through preliminary investigations (during which the investigators—the main actors at this stage—seek evidence to verify the validity of the report, For further information on Preliminary Investigations, CLICK HERE), before advancing to the trial phase (where the prosecution and defense confront each other on equal terms before an impartial and neutral judge).
The trial phase is legally mandated to ensure the full exercise of the right to defense for the accused, who is presumed innocent until a final judgment is issued, based on the well-established presumption of innocence. The accused can thus defend themselves by presenting their own witnesses and documents, and generally engaging in any defensive activities necessary to counter the prosecution’s case (including cross-examining opposing witnesses with their own questions).
However, in certain scenarios, proceeding to the trial phase may be inadvisable from a defense perspective.
Consider cases where the preliminary investigations have been conducted with such thoroughness by the investigators that they have collected extremely strong—almost irrefutable—evidence of the crime’s commission (for instance, where numerous and converging accusatory witness statements exist, along with multiple video files recorded by surveillance cameras and eyewitnesses, fully capturing the criminal act and its perpetrator).
In such cases, it may be extremely difficult to “offer” an alternative reconstruction of the events: the trial might even reveal, in greater detail, the severity of the events, as it is the forum designated to clarify the specifics of each legal case.
Additionally, it might be inadvisable to enter the trial phase in cases where, although the defendant is innocent, the events have occurred in such a unique manner that providing an alternative reconstruction to prove the alleged perpetrator’s innocence is extremely challenging (consider the lack of defense witnesses, possibly due to accidental causes such as their sudden death, or other reasons leading to the destruction of essential documents, such as a fire destroying video files proving the accused’s innocence and the responsibility of others, etc.).
In such scenarios (which may overlap with those where it is advisable to request an “giudizio abbreviato”, For further information on “giudizio abbreviato” CLICK HERE or a suspension of proceedings with probation, For further informaion on Suspension of criminal proceedings with probation CLICK HERE), it may be useful to entirely bypass the trial phase (by not holding it) by filing a request for “plea bargaining”: that is, it may be appropriate to negotiate an agreement between the alleged perpetrator and the Public Prosecutor regarding the penalty to be imposed (an agreement which will then be “validated” by the Judge with their ruling).
The defensive advantage of this procedural choice lies in the fact that, on one hand, it allows for a reduced sentence (“reduced by up to one third,” according to the law) compared to what might be imposed following the trial, and on the other hand (and here is the second advantage), it allows for a concurrent request for conditional suspension of the sentence (meaning the conviction is not executed but remains “suspended” for a specified period, after which, if no further crimes are committed, the criminal offense will be fully extinguished).
Further advantages, significant from a defensive standpoint, include the legal provision allowing for the avoidance of court costs for the defendant, the possibility to request that the judge not impose additional penalties or confiscation, and, importantly, the legal provision that, even if conditional suspension of the sentence is not granted (which is not always possible), the offense will be extinguished if the offender does not commit another crime of the same kind within the next two or five years (depending on the case).
While sharing the nature of an alternative procedure to the trial with abbreviated judgment and suspension of proceedings with probation, “plea bargaining” is legally admissible only for certain types of offenses (not particularly serious ones). Therefore, it is crucial to thoroughly consult with your trusted attorney to assess the possibility of accessing this alternative procedure.
Founding Lawyer
Jacopo Antonio Ahmad
For further information, Contact Us.
