Preliminary-Hearing Waivers and the Contract to Negotiate, 2023 Pepperdine L. Rev. __ (2023)

Check out my new article on preliminary-hearing waivers and how they create the prosecutorial obligations to respond to defense lawyers' plea offers and to use good faith in plea negotiations—something defense lawyers either aren't aware of or typically forget about.  It will be published later this year in the Pepperdine Law Review, but you can find a pre-publication draft of the article here.  All of my articles, organized by topic, are available here.  Finally, you can find the new article's abstract after the jump.

Article Abstract

Plea bargaining often begins very early in a criminal case—sometimes before the preliminary hearing, or “prelim,” is held. Because of the time, effort, and risk involved in holding a prelim, the prosecutor may make the defendant a prelim waiver offer. That is, if the defendant agrees to waive the prelim, the prosecutor will hold a particular plea offer open for the defendant’s future consideration. Such prelim waiver offers may be skeletal, at best, but will often include the promise of “future negotiations” to fill in the details.

When the prosecutor obtains the defendant’s prelim waiver for the promise of future negotiations, the parties have entered into a legally binding agreement known as a “contract to negotiate.” Despite this, after a prosecutor induces the defendant to waive the prelim, the prosecutor may then refuse to negotiate in good faith—or at all. This is a breach of the contract to negotiate, and the defendant is entitled to a remedy. 

Defense lawyers may mistakenly overlook a prosecutor’s breach in this situation, as the two classic remedies for a plea-bargain breach—i.e., plea withdrawal and resentencing—don’t fit in these circumstances. Instead, the failure to negotiate is akin to a failure to prosecute, and numerous sources of law provide a variety of remedies. These include dismissal of the case with or without prejudice, dismissal of felony charges, or at least a remand for a preliminary hearing. This Article discusses these remedies and provides a model motion seeking relief from the prosecutor’s breach.