Criminal Procedure 101: Plea Agreements --Why Most FDA Compounding Drug Cases Result in a Plea Agreement in the Federal System

Most criminal cases in the United States are concluded prior to any trial or even during trial by the defendant’s entering a plea of guilty. Often, these guilty pleas are the result of negotiations between the prosecutor and the defense attorney. This process is called plea bargaining. The agreement is called a plea agreement or plea bargain. In a plea agreement, the defendant, generally through his or her attorney, agrees to plead guilty to some or all of the charges against him or her in return for certain actions by the prosecutor. The prosecutor may agree to dismiss one or more of the charges, or may agree either to make a recommendation to the judge about the sentence to be imposed or not to oppose a sentence suggested by the defense counsel. The prosecutor’s agreement binds the United States. As part of a plea agreement, the defendant may also agree to give truthful testimony about crimes of which he or she has knowledge. Therefore, a prosecutor may use the plea agreement to obtain testimony of a minor criminal that is necessary to convict a more significant criminal. A guilty plea must be made before a judge. A court reporter makes a verbatim record of everything said in the proceeding. Before the judge will accept the guilty plea, he or she will question the defendant in open court to make sure that the defendant understands his or her right to plead “not guilty” and to demand a trial; that the defendant is pleading guilty voluntarily; that the defendant understands the terms of any plea agreement and the consequences of the guilty plea; that the defendant has not been subject to coercion or improper promises on the part of the prosecutor; and that there is a factual basis for the plea. If the judge is not satisfied by the defendant’s responses to the questions, the judge will reject the defendant’s guilty plea.

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The above is a simplified version of the plea agreement process.  In fact the federal law in each circuit may require a number of specific items be included in the plea agreement or that the judge cover each essential element of the crime at the plea colloquy.  The main point to take away is that most federal cases do not go to trial--most result in a plea agreement.