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Scanned copy, if there are errors, please e-mail me with corrections:


By Austin M. Cooper, Q.C. Barrister & Solicitor

April 4th, 1981

To main index of these items.


1.     Where the plea will be not guilty

2.     Where the Plea Will Be Guilty


1.     Obtaining Discovery

2.     Considerations of Time and Space

3.     Decorum and Dignity

4.     Speaking for the Record

5.     Creativity in Sentencing Submissions


1.     Requirement of a full Preliminary Hearing

2.     Calling the accused at the Preliminary Inquiry

3.     Partial preliminary Inquiry

4.     Waiving the Preliminary Hearing



    I was asked to confine this lecture to trial tactics in the Provincial Court. That tribunal is the Court of first appearance for most criminal cases, and disposes of a great majority of the criminal trials in this Province. Accordingly Counsel who practice in the area of criminal law must be familiar with the special problems and techniques that are applicable to appearances there. In this address I intend to deal with the questions of trials in that Court, Preliminary Hearings, and that useful mechanism, the negotiated plea. I will also discuss the considerations involved in choosing the tribunal by which one's client will be tried.


1.     Where the plea will be not guilty

    Where your client faces charges in respect of which he has the option to elect to be tried either in the Provincial Court or in another court of criminal jurisdiction, (with or without a jury), there are a number of considerations in making a choice of trial tribunal.  Certainly, if the trial is held in the Provincial Court, it can be expected to be less costly for the defendant. He need concern himself only with counsel fees in one court as there will be no preliminary hearing. And generally, for reasons that I will outline subsequently, trials in the Provincial Court tend to proceed at a faster pace than trials in the County or Supreme Courts. In the event that he is in custody, it is likely that the defendant will have his case disposed or much earlier in the Provincial Court than if he elects trial in the County or Supreme Court.

    Sometimes an important consideration in making the choice of trial tribunal is the judicial officer who may preside.

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    For example, suppose Judge X in the Provincial Court has, in a number of decisions, made it known that in his opinion, convictions for a certain crime deserve a very lengthy sentence of imprisonment. On the other hand, it is known that many of the Judges in the County Court have indicated in their previous decisions that they do not consider that the crime merits lengthy imprisonment. Is there any doubt as to how counsel should advise his client to elect when the client is before Judge X facing trial for such an offence? It is
a fact of life that independent, honest judges may hold differing opinions on issues that are common to many criminal proceedings. That is the difference between trial by machine and trial by human being. And Counsel can act quite ethically if, being apprised of different opinions, he properly uses his rights of election to attempt to bring his client before the judicial forum that is likely to be more advantageous for the accused. That is not to say that counsel may mislead the court or use other dishonest procedures to attempt to bring his clients before a certain judge.

    Another factor to be considered in making the choice of trial tribunal is whether a preliminary Hearing will be of assistance to the defence. If defence counsel has received full disclosure from the Crown, a Preliminary Hearing may involve unnecessary delay and expense. I will deal with these matters more fully later in this lecture.

    If the defence is not a technical one and credibility issues are involved rather than legal issues, counsel may wish to advise his client to elect trial by Jury. For example, you may have a client who is charged with possession of goods obtained by crime, where the only evidence against him is his recent possession of the goods.

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    You consider his explanation somewhat naive. However, he has been a law-abiding citizen until charged with this offence and can call evidence of good character. No technical defence is involved. I would think that you might consider advising him to elect trial by jury. A jury trial may also be advantageous when the defence has strong emotional appeal. For example, suppose that you are defending a tiny decent woman who has killed her husband by stabbing him forty times with a long kitchen knife. Some of the wounds are in his back. She is charged with manslaughter. There will be evidence that her husband was a brutal man who beat her and abused her for years. At the time of the alleged offence he was slapping her with his belt. Her defence is self-defence. I suggest that this is the type of case where the defence might best be comprehended by a Jury, particularly if one could expect a number of women to be included on the Jury panel.

    Where rigid application of legal principles may appear to do your client an injustice in view of his relationship with the complainant or the complainant's admitted arrogance or complicity a jury trial may be indicated. For example, suppose you are representing a client who is charged with theft. The evidence will disclose that the complainant has taken financial advantage of the accused and that in despair and frustration your client has seized goods belonging to the complainant. The defence is colour of right. In my opinion it is the type of case which is best argued before a Jury. Similar considerations may apply in a case of rape where the complainant apparently has contributed to the situation that led to the alleged crime.

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2.     Where the Plea Will Be Guilty

    If you expect that your client will be entering a plea of guilty at his trial, you may want to consider discussing the plea with the prosecutor with a view to negotiating a joint submission as to sentence. The right of election may give you two opportunities to attempt this. The Crown Attorney who appears at the Provincial Court level is likely to be a different person than the prosecutor at the County Court level. Therefore, if you have an opinion as to the appropriate range of sentence that your client should receive on a plea of guilty and the Crown Attorney who appears at the Provincial Court level is unable to agree with you, you may choose to waive a Preliminary Hearing and attempt to discuss the same range of sentence with a different prosecutor who may appear in the County Court. In these circumstances, it is only fair to indicate to the first Crown Attorney that you will be attempting to persuade one of his brethren who will appear in the County Court of the wisdom of your views. Also advise the Prosecutor in the County Court that his colleague disagreed with you. It is my experience that most Crown Attorneys will appreciate your candour and not object to your proceeding in this manner. It is axiomatic that, just as in the case of judges, different prosecutors often hold widely divergent views as to the proper sentence for a particular crime.

    Even in cases where you are able to reach an agreement with the Crown Attorney who appears at the Provincial Court level as to the submissions to be made to the Court concerning appropriate sentence on a plea of guilty, you will want to consider which tribunal is most likely to accept the joint submission. It is clear that the judge is not bound to accept the recommendations of Crown and Defence as to the appropriate sentence. However, research or experience may tell you that certain of the Judges are more receptive to joint submissions than others.

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    If you are of the opinion that the presiding Judge in the Provincial Court is generally unreceptive to joint recommendations as to sentence, you might discuss this with the Crown Attorney and indicate that you are prepared to waive the Preliminary Hearing in the Provincial Court and enter a plea on behalf of your client in the County Court. You might ask him to note on his confidential instructions the range of sentence that has been agreed upon so that another prosecutor at a later date may feel more secure in following it. Alternatively, you might request that the prosecutor in the Provincial Court appear when the matter comes on for trial in the County Court.


1.     Obtaining Discovery

    If the offence charged against your client is one punishable on summary conviction, or is within the absolute jurisdiction of the Provincial Court, you may have no choice of the forum.  In other cases you may have decided to elect trial in Provincial Court. Accordingly, all questions of law and credibility will be determined in the Provincial Court, and you will not have discovery of the Crown's case at a Preliminary Inquiry. Since it is important to learn as much as possible about the case for the prosecution before arriving in Court on the trial date, your primary concern will be to obtain adequate disclosure from the Crown.

- 6 -

    It might be wise to call the police officer in charge of the prosecution and determine if he will outline the case to you and tell you what witnesses may be subpoenaed for the Crown.  Some officers will be co-operative, some will be reticent. If you should have problems, consider contacting a Crown Attorney in the jurisdiction to discuss them with him. Often it is difficult to determine in advance of the trial which prosecutor will be pleading in the Courtroom on the day that your client is to appear. Therefore, try to meet with a senior or supervising Crown Attorney, tell him about the prosecution, about your problems with the officer, and ask if he will discuss the case with the officer with a view to recommending that more disclosure be made to you. You may find that you will have to make a number of phone calls to bring a prosecutor and the investigating officer together, but if you persist, it is likely that in most cases, you will obtain disclosure.

    Sometimes the disclosure of the Crown's case will be so devastating to the explanation that your client has given you, that you will want to have another talk with the accused before trial to explain the implications of the evidence for the Crown to his case. Often, in such circumstances, your client will see the futility of maintaining his defence in the face of overhearing facts and you really want to discuss with him whether he should plead guilty.

    From the prosecutor's point of view, this is one of the best reasons for making full disclosure to the defence. It is in his interest to encourage pleas of guilty and thereby save time and expense.

    In the few cases where you are unable to obtain adequate disclosure from the police or the prosecutor, you will have to do the best you can at trial from your interviews with your client, and attempt to be fast on your feet as the evidence for the prosecution unfolds.

- 7 -

    However, if at trial, you are taken by surprise by powerful prosecution evidence which was not disclosed in advance, you might ask that the presiding judge adjourn the case to permit you to explore the situation with your client and to obtain further instructions. This will give you some breathing room to consider countering the evidence that took you by surprise. Certainly, in these circumstances, most courts will recognize the justice of either a short or a lengthy adjournment to allow you to make full answer and defence
on behalf of your client.

2.     Considerations of Time and Space

    The Provincial Courts in Ontario hear well over 90% of criminal cases tried in this Province each year. A look at the daily list of a Provincial Court Judge in Toronto or Barrie or London will reveal the tremendous work-load assumed by that Court. The criminal lists in the County and Supreme Courts are considerably lighter.

    It has always been my impression that County Court trials proceed at a slower pace than those in the provincial Courts and that trials in the Supreme Court of Ontario proceed even more slowly than those in the County Courts. Perhaps it is a reflection of their relative work-loads in criminal cases.

    It is my opinion that a good advocate will tailor his advocacy to the forum in which he is appearing. Generally his cross-examinations and his arguments will be more concise in the Provincial Courts than in other courts. I recall the late Onie Brown entering Magistrates' Court "C" in the basement of the Old City Hall perhaps 25 years ago. He was a fine practitioner in the criminal courts and I learned a great deal from him. I offered him my seat. "No, stay where you are Austie", he said "It's going to be a fast plea of guilty and I don’t want the Magistrate to think it's a very serious case – I'll just stand through the whole thing".

- 8 -

    He pleaded his client guilty and was out of the Courtroom within 5 minutes. He taught me how to be fast on my feet!

    In my opinion the Judges of the Provincial Court appreciate conciseness on the part of Counsel. And from the advocate's point of view, he is more likely to hold the court's interest if he is aware of the time constrictions in that forum.

3.     Decorum and Dignity

    I was sitting in a Provincial Courtroom a few weeks ago when defence counsel was making submissions as to sentence after his client had pleaded guilty. While he addressed the Court he appeared to be munching on peppermints which crunched every time he closed his jaws. His attitude was breezy and informal. His hands were in his pockets and he swung around to watch the back of the courtroom with a grin on his face. It was apparent that he really had no respect for his client or for the legal process – or indeed for himself. His client was a poor waif from the wrong side of the tracks, and his representation of the client was just as downtrodden. I think that Counsel is better received when he reflects some personal dignity and when he treats the Judge's role with the respect that it deserves. It is not good manners that are being discussed, but good advocacy. It is an advocate's function to convince the tribunal, if he can, that his client is a good person and that his arguments are valid; he must be conscious that his client and the integrity of his arguments are reflected in his attitude towards the Court.

4.     Speaking for the Record

    Every advocate should be aware of how his questions or submissions will appear on the written record that is being created while he speaks. For example, when you are cross-examining a witness at a Preliminary Hearing, you will want to ask your questions precisely and attempt to receive answers that are responsive.

    Your function in such a cross-examination is not only to learn what the witness is going to say, (and thereby obtain discovery) but also to limit his testimony so that if he changes it at trial you can contradict him by reference to precise answers at the Preliminary Hearing. Accordingly, you must have some sense of speaking for the transcript that is being taken.

    Similar considerations apply at a trial. Your objections to the admissibility of evidence or as to other rulings of the trial Judge should be expressed so that they are clearly conveyed to the trial Judge but also so that the legal issues will be fully covered and reflected sharply on the trial record for consideration by an Appellate Court if that should become necessary.

5.     Creativity in Sentencing Submissions

    Whether or not the client has pleaded guilty or has been found guilty after a trial, counsel should try to be creative in making his submissions to the Court as to the proper sentence. Many judges have expressed the view that it is the area of sentencing that gives them the most concern. Your job as advocate is to attempt to assist the Court in this troublesome area by tendering in an enlightening and stimulating way, evidence and submissions that will convince the Court that your client deserves lenient treatment. Resourceful counsel will research all of the facts discussed below with respect to negotiated pleas so as to cast the best light on his client's background, involvement in the offence and future prospects.

- 10 -

    It is helpful to have prepared copies of relevant cases where sentences have been imposed by other courts in similar circumstances. For example, sometime ago I represented an accused in a court in northern Ontario. He was charged with theft. He was the Treasurer of a small Municipality and it was alleged that he took funds that had been paid to him by residents of the municipality on account of their taxes. He was clearly in a position of trust and, as you are aware, the general rule is that in such situations there should be imposed a term of imprisonment unless there are exceptional circumstances. Recent decisions of the Court of Appeal were cited to the sentencing Judge in support of the proposition that increased resort should be had to community service orders in appropriate cases. Also cited to the Court were a number of narcotics cases in which trafficking was involved and in which, despite the general rule that an accused be imprisoned in such circumstances, community service orders were approved. In addition a recent decision of the Court of Appeal was quoted in which a professional man in somewhat similar circumstances as the accused before the Bar was ordered to do community service in lieu of imprisonment. On the basis of those authorities the Court in northern Ontario, recognizing that the accused was of prior good reputation and that he could provide useful community service, ordered him to make restitution and to perform community service in the area in which he was living. The Weekly Criminal Bulletin contains an excellent digest of reported and unreported sentencing decisions across Canada that are valuable tools in convincing a court that the sentence you propose is reasonable.

    It is important to be scrupulous with the Court both as to the facts of the case and as to your client's attributes when making sentencing submissions. Some time ago I was present in a Provincial Court when Counsel was speaking to sentence after a plea of guilty.

- 11 -

    When the Judge pointed out the seriousness of some of the facts admitted on behalf of the accused, Counsel attempted to retract some of those acts and misstate others. It was clear that he thereby lost the confidence of the presiding Judge and his submissions after that were given little weight.

    In the area of sentencing submissions as in trial tactics generally, one can learn a great deal from observing the techniques of other skillful practitioners at the bar. Try spending some time in Court observing Clay Ruby or David Humphrey deal with sentencing problems on behalf of their clients and determine how you can make some of their skills work for you.


1.     Requirement of a full Preliminary Hearing

    In cases where the Crown Prosecutor refuses to give you disclosure, or where you consider the disclosure to be inadequate, you can compel disclosure by electing trial in the County or Supreme Court and insisting on a full Preliminary Hearing. This, in my opinion, is another reason why it is in the interest of Crown Attorneys to make disclosure. The defence will get it anyway. Sometimes, the Prosecutor will attempt to restrict the disclosure at the Preliminary Inquiry by calling just enough evidence to make out a prima facie case and moving for committal. If you feel that this has prejudiced your client, you may consider calling the Crown witnesses at the Preliminary Inquiry yourself in order to obtain proper discovery. (See Caccamo v The Queen (1975) 29 C.R.N.S. 78;  Patterson v The Queen (1970) 10 C.R.N.S. 55;  Re Ward and The Queen (1976) 31 C.C.C. (2nd) 446, affirmed 31 C.C.C. (2nd) 446 n;  R v Churchman (1954) 110 C.C.C. 382). Usually those witnesses will have been subpoenaed by the prosecution and therefore will be available. If not, you may have to issue subpoenas to them. You will be restricted to examining those witnesses in chief but at least you will be able to determine the extent of their evidence.

- 12 -

    Counsel will also want to insist that a full Preliminary Hearing be conducted when his investigations disclose that the case for the Prosecution is weak and he suspects that the Crown may not be able to make out a prima facie case. It can be expected that the Crown will call all its important witnesses in these circumstances and you will want to cross-examine them carefully to point up their inadequacies without embarking on a fishing expedition and thereby adducing further facts that may prejudice your client. In addition, you should pay careful attention to see that only admissible evidence is adduced by the Crown. At the conclusion of the Persecution's case, you are entitled to move that the defendant be discharged and the motion will be granted if there is no evidence against your client. (See U.S.A. v Sheppard (1976) 30 C.C.C. (2nd) 424).

2.     Calling the accused at the Preliminary Inquiry

    One must keep in mind that the Judge presiding at a Preliminary Hearing has no power to weigh evidence or make findings of credibility (U.S.A. v Sheppard supra). Accordingly, if the Crown has called evidence, which, if believed makes out a prima facie case, the Provincial Court Judge is bound to commit the accused for trial. For this reason it is seldom profitable to call the accused as witness to dispute or deny the evidence led by the Prosecutor. I have only called my client as a witness at the Preliminary Hearing once or twice in 28 years of practice. On one occasion, a rape case, the complainant's evidence and conduct was so devious and so inconsistent with lack of consent that at the conclusion of the Preliminary Inquiry, I moved the Court to discharge my client. The Judge asked me if I was going to call the accused, and I took the chance. I expected that my client's evidence would point up the inconsistencies in the complainant's conduct and provide the background for her behaviour. That is what happened, and my client was discharged.

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    On the other hand, I was present in Court to observe an occasion when Counsel called his client at the Preliminary Hearing with disastrous results. In most cases this tactic can only serve to provide the Prosecution with full discovery of the defence and perhaps provide him with admissions that he may choose to read into evidence against the accused at trial. The accused's evidence at the Preliminary Inquiry may also provide useful fodder for his cross-examination by the Crown at trial. As a result, you will seldom see experienced Counsel call their clients as witnesses in Preliminary Hearings in this Province. (In this regard see G.A. Martin: Preliminary Hearings, Special Lectures of the Law Society of Upper Canada: Evidence, 1955, p. 17).

    Where your client's defence is an alibi, it is important to place it on the record that it was disclosed early in the proceedings so that it could be investigated by the authorities. Your failure to do so may weaken that defence at trial because the trial Judge may comment to the Jury that it was raised at the trial for the first time. (See R v Clarke (1979) 48 C.C.C. (2nd) 440; R v Mahoney - - (1979) 50 C.C.C. (2nd) 380). However, there is no necessity to call the accused at the Preliminary Inquiry to accomplish this. Counsel may outline to the Court at the Preliminary Hearing the details of the alibi and the witnesses who may be called to support it at trial. Alternatively, he may describe them in a letter to the Crown Attorney and send a copy of the letter to the police. Then, at trial, he will be able to prove through cross-examination of the police officers that they were in possession of the facts supporting the alibi with ample time and opportunity to investigate it and, if possible to refute it.

3.     Partial preliminary Inquiry

    There will be some cases where, although full disclosure has been given to you by the Crown, and you are certain that the Crown has sufficient evidence to ensure that your client will be committed for trial, you may still wish to request that some of the Crown witnesses be called at the Preliminary Inquiry. It may be important to gauge the appearance, demeanor, credibility, or bias of certain key Crown witnesses and to determine their articulateness and intelligence, even though you have been provided with copies of their statements. For example, in a rape case, even though the Crown may have provided you with a copy of his brief, including the statements of his witnesses, you will want to request that the complainant be called at the Preliminary Hearing so that you can observe her and test her evidence by cross-examination. Similarly, when the chief witness for the prosecution is an accomplice, it is important to test his acuity and credibility in advance of the trial by requiring him to be called for cross-examination at the Preliminary Inquiry. In a case where one of the main issues is the identification of the accused, and you suspect that the witnesses who will be called by the Prosecution to identify your client may be mistaken or uncertain, or when it may be valuable to test their opportunities for observation, you might request that their evidence be called at the Preliminary Hearing so that you may cross-examine them.

    Where the above considerations apply, you might indicate to the prosecutor that although he has made disclosure, you will want to hear those few witnesses called and-that after questioning them, you will waive the taking of further evidence at the Preliminary Hearing and consent that your client be committed for trial.

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    (See Section 476 of the Criminal Code). At the commencement of the Preliminary Hearing, it may be helpful to advise the presiding Judge that you expect that there will be a committal for trial. In a recent case in which I was involved, the Provincial Court Judge asked me at the outset of the Preliminary Hearing whether I intended to move for a discharge at the conclusion of the Crown's case because, if I did, he would want to take very careful notes. I advised the Court that I expected that the accused would be committed for trial and the Judge appeared grateful that he could relax somewhat during the taking of the evidence of the few witnesses that I requested be called.

4.     Waiving the Preliminary Hearing

    Where you have determined that the trial should be held in the County or Supreme Court, and the Crown has provided you with full disclosure of his case, you may feel in some circumstances that it would be a waste of time and expense to hear viva voce evidence at the Preliminary Hearing. This will only be so when you have no doubt that the Crown has sufficient evidence to ensure the committal of your client for trial. Pursuant to Section 476 of the Criminal Code, you will consent that your client be committed for trial.

- 16 -


    Constructive use of the negotiated plea can be one of the most effective tools of an advocate. Chances are that 70% or 80% of the cases that come into your office are hopeless in the sense that there is no valid defence to the charge. Nevertheless you can provide a very valuable service to the client who is in such a predicament by applying creativity to plea negotiations. For example, has your client information which may be of value to the police and which he is willing to divulge? Is he prepared to give evidence for the Crown? Often the police and Crown authorities are prepared-to make valuable concessions in assessing the proper sentence to be imposed on an accused who is not only willing to plead guilty but can also provide them with useful information or evidence that will assist them in their prosecutions. In fact in some cases where the charge facing the accused is not serious and the information that he is prepared to give to the police is important, Crown authorities may agree to withdraw the charge against him. Needless to say these negotiations must be conducted with the utmost confidentiality and discretion.

    In other cases, there is much that can be done to convince the police and prosecutors that on a plea of guilty a joint submission be made that is in the lower end of the scale for the offence committed by the accused. For example, if your client has emotional problems, try to obtain a psychiatric assessment, I have always found the Crown authorities understanding of such problems; Judges, of course, are quite aware of the large number of offences committed by disturbed persons. In my experience, a large number of persons charged with shoplifting fall into this category. Sometimes a credible psychiatric report by a recognized doctor will convince the authorities (and the complainant, who is always consulted) to withdraw the charge.

- 17 -

    What sort of employment record has your client had? Would his employer give him a reference and will he be prepared to hire him despite the plea of guilty and conviction? Prosecuting authorities are much more receptive to negotiations on behalf of an accused who has shown that he is able to work productively in the community than one whose work record is scanty and unstable.

    Try asking your client what he has done during his lifetime that he is particularly proud of. Sometimes you will be surprised and gratified to learn that he has earned an aware for bravery or humanitarianism or for assisting police to apprehend a suspect. Perhaps he has taken special education that gives him unusual qualifications. Facts such as these are powerful persuaders when negotiating with the Crown.

    In some cases you will learn by careful inquiry that your client has a valuable and interesting aspect to his life that arises out of his hobbies or avocations. For example, he may have spent a great deal of his time sailing and may be training to represent Canada in the sailing Olympics. Facts such as these serve to whet the interest of the Crown authorities and help to convince them that your client's sentence should be a more reasonable one.

    Needless to say it is important to be accurate in dealing with the police and Crown Attorneys as to negotiated pleas. Apart altogether from ethical consideration that make this mandatory, if you mislead a policeman or prosecutor once, your ability to negotiate with him or his office in the future will be impaired.

    Because a plea of guilty is contemplated, an agreement will have to be reached between you and the Crown as to the relevant facts concerning the offence. Those facts will be placed before the sentencing court as a basis for the sentence. There may be certain aggravating circumstances alleged by the Crown to which your client is unwilling to admit and the differences will have to be worked cut between you and the prosecutor.

- 18 -

    You should recognize that no responsible Crown Attorney will commit himself to an agreement as to the facts or as to a joint submission concerning sentence without consulting the police officers in charge of the case. With that in mind, it may be helpful if you discuss some of the issues involved with those officers.

    In some cases you will be unable to agree with the sentence that the prosecutor indicates that he proposes to submit to the court as a proper penalty for the offence. However you may attempt to obtain his agreement that he will limit his submissions in such a way as to put an acceptable upper limit on the prospective sentence and allow you to make submissions as to a much lower penalty. In this way the Court may be presented with a range of sentence that in your opinion may lead to a just disposition for your client.

    Although you may be successful in convincing the Crown to make a submission concerning sentence that is favourable to your client, and in which you will be happy to concur, it is clear that the sentencing judge is not bound by your joint submission and may decide to reject it. (See R v Simoneau (1978) 40 C.C.C. (2nd) 308). As discussed earlier in this article, some judges tend to be more receptive to joint submissions of counsel than others.

    Perhaps the ultimate value to your client in a successful plea negotiation is that it brings some certainty into his life. I feel that one of the most debilitating effects of a criminal prosecution on an accused person is the uncertainty he feels about the future. If you can indicate to him the probable result in his case well in advance of his courtroom appearance, it will give him time to come to grips with it and permit his family to make plans.

It will make a difference!

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