Expanding the "Zone of Possible Agreement"

By Clayton T. Robertson (Criminal Defense/Civil Rights Attorney)

A prosecutor at the outset of a case has a preconceived notion of what it's worth -- that is, the potential offers or range of offers. They filed the case, so they've already made an internal assessment of its value.

What does it take to pull them out of that range or expand the DA's "zone of possible agreement"?

This is where discovery comes into play. Discovery is the evidence the defense receives from the prosecution -- i.e., incident reports, audio, images, videos, texts, social media, other digital evidence, etc.

The defense needs to distinguish between "everything but the kitchen sink" discovery versus what I call "hit list" discovery. The former is the standard discovery in any case. But "hit list" discovery consists of those key items you believe may work in your favor that could shift the negotiations to your advantage. This discovery is typically case-dependent. And it only takes one critical fact to alter the outcome of a case.

Stated differently, these "hit list" items, once shown to the DA, expand their "zone of possible agreement" and their offers in the case in your favor.

This is why many defense attorneys, including myself, do not ask for the DA's offer until discovery is finished or nearly complete, including your own investigation with the assistance of a defense investigator. You are always looking for those items that result in a better resolution or may lead to a successful outcome at trial.