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Can the prosecution back out of a plea deal?

On Behalf of | Oct 17, 2021 | blog, criminal defense

If you face criminal charges, and if there is a strong likelihood that the prosecution will secure a conviction, a plea bargain may offer the most favorable outcome. If the prosecution offers a deal and you accept it, the courts will consider it legally binding, much like a contract.

What if, however, the courts have yet to finalize your deal and the prosecution attempts to back out? Is it legally allowed to do so?

No take-backs

According to Nolo, the American Bar Association established Prosecutorial Function Standard 3-4.2(c), which essentially states that it is unprofessional for prosecutors to back out of plea agreements once they offer one and once defendants indicate that they accept. In fact, the rule states that even if a defendant has not had the chance to officially accept a deal, the prosecutor cannot back out unless it can prove one of two things:

  • Extenuating circumstances exist, such as the prosecution discovered pertinent information about the defendant only after offering the deal; or
  • The defendant breached his or her part of the agreement.

As an example, the prosecution may legally back out of your agreement if it finds out you have prior convictions on your record for a similar offense that it did not know about. Also, it may back out if you skipped town on parole previously, or if it discovers plans of yours to skip town.

When prosecutors do back out

Most prosecutors are unwilling to back out even if they can meet the criteria for doing so. This is because the courts typically prohibit prosecutors from using the information at trial that they gleaned during plea negotiations. Not only that, but many courts deem information inadmissible if defendants shared it in the hopes of securing a plea agreement. What this means is that even if you and the prosecution discuss a plea deal but it never officially extends one, the courts may make inadmissible any information the state gleaned during your discussions.

Though not set in stone, plea deals, once in the works, are fairly concrete. If you worry that the prosecution will try to back out, though, discuss your concerns with your lawyer, who can take steps to minimize this possibility.