There are also three types of plea bargaining (internationally): (1) sentence bargaining, which involves a discount on the sentence; (2) change bargaining, in which the accused enters a guilty plea, but only for the lesser offence directly indicated by the prosecutor.5

What is certain is that the prosecutor can be identified as the “dynamo” of these constructions, since he has a vested interest in the judicial determination of the criminal liability of the accused. In addition, he also weighs up aspects such as the energy expended on the case, the termination of the proceedings, or minimising the chances of acquitting the accused and obtaining the sentence he proposes.6 It should be noted that the prosecutor, unlike in continental systems, does not seek to impose the most severe sanction available under the law, but is content to impose the most acceptable legal consequences. This also puts him in a favourable negotiating position, since “he can offer the defence a reduction of the charges in a way that does not jeopardise his own objectives.”7

An important condition for the validity of the agreement is that it must be concluded directly between the prosecutor and the defender of the accused.8 This is essentially a demonstration that the “prosecutor’s offer” is not manifested as some sort of dictate, but is based on a mutual and consensual expression of will on both sides. The defence lawyer must consider in this context the likelihood of his client’s release if the agreement is concluded. This is a “minimum risk factor” before entering into the agreement, but he should also be aware that there is a possibility of a more severe sentence being imposed as a result of any due process. This is why the American Bar Association (ABA) has introduced the practice of making it an obligation for a defence counsel to conduct a private investigation in cases where their client wishes to make a confession. It is a different matter that defence lawyers are hardly effective in fulfilling these obligations, since, as Farkas writes, “it is more pleasant and time-saving to resolve the case in the prosecutor’s study over a cup of coffee than to prepare for trial; in a minority of cases, the defence lawyer can expect to be paid a full and fair fee in line with legal ideals; a plea bargain conducted in secret masks any professional incompetence; a successful plea bargain is always the result of the efforts of the defendant’s client, whereas the conclusion of a normal trial – a jury trial – most often means a severe punishment and not the freedom he or she desires.”9

David points out that defence lawyers very often try to persuade their clients to confess – in order to reduce the expected sentence.15 Overall, the majority of defendants in the US choose this route rather than appear in court.16

Because of the rules of conduct, this construction is more similar to the conditional suspension of the prosecution, but from a terminological point of view it should be classified as a ‘settlement’, since it can only be used if the accused consents. It should be noted that this legal instrument has been the subject of much criticism in French literature, since it essentially allows the prosecutor to impose prior sanctions and the possibility of imposing normative sanctions is completely alien to the concept of a plea bargain. In this connection, several authors have pointed out that, in deciding whether or not to accept the offer, the accused is essentially acting under duress, since if he refuses, he risks a longer (general) trial and the possibility of a more severe penalty.18

At the start of the conciliation procedure, the prosecutor’s office informs the accused or the defence lawyer of the possible contents and consequences of the settlement.22 This is important to allow the defence to consider the possible advantages and disadvantages of accepting the plea bargain in good time. The necessity of the defence is also important because, on the one hand, the decision to charge may be influenced by the prosecution and, on the other hand, the accused may later – during the preparatory meeting – withdraw his confession, which could lead to procedural inconsistency. In addition, when considering the agreement, the defence must take into account whether (1) its content is proportionate and acceptable, or (2) it provides for a lighter sanction than would be expected under the normal rules of court.