Plea agreements and negotiation in criminal proceedings

A criminal defence does not consist solely of deciding between pleading not guilty or accepting an accusation. At certain stages of the proceedings there may be room to negotiate the legal classification of the offence, the sentence, civil liability or other rulings. In other cases, the most appropriate option may be to reject any proposal and continue the defence through to trial.

Vox Legis analyses both alternatives from the same perspective: choosing the strategy that best protects the client's legal position, taking into account the evidence, the procedural risk and all the consequences of the decision.

Negotiating does not necessarily mean entering into a plea agreement

Negotiation is part of the procedural strategy. During proceedings, discussions may take place aimed at determining whether a legally acceptable solution exists for the parties. The existence of negotiation does not oblige the accused to accept a plea agreement. The final decision must be taken after analysing the evidence, the existing charges, the possibilities for defence and the specific consequences of each alternative.

What is a criminal plea agreement

A plea agreement (conformidad) allows criminal proceedings to end through a judgment based on the facts, the legal classification and the consequences accepted, on the terms provided for by law. It should not be confused with a simple informal negotiation. Entering into a plea agreement involves taking a procedural decision of particular importance, which is why the accused must be aware in advance of its content and consequences.

When it may be considered

Procedural law provides for different points at which a plea agreement may be reached, depending on the type of proceedings and their stage, under the Ley de Enjuiciamiento Criminal (Criminal Procedure Act) as currently in force following the Ley Orgánica 1/2025, de 2 de enero. In abbreviated proceedings, it may be raised, among other times, during the preliminary hearing (art. 785 LECrim) and, in the cases provided for by law, before the taking of evidence begins (art. 787 ter LECrim). Specific rules also apply in fast-track proceedings.

Before accepting: analysing all the consequences

The analysis of a possible plea agreement cannot be limited to comparing the number of months or years of imprisonment requested. Depending on the matter, fines, civil liability, disqualifications, confiscation, criminal record, enforcement of the sentence and any other legal consequence that may affect the client must also be examined. In certain corporate proceedings, there may also be consequences for directors, officers, companies or business activity.

Plea agreements and fast-track proceedings

In certain fast-track proceedings, where the requirements established by law are met (art. 801 LECrim), a plea agreement may allow for a one-third reduction of the sentence requested. This reduction responds to a specific procedural regime and does not constitute a rule automatically applicable to any criminal agreement or plea agreement.

A plea agreement must be free and informed

Accepting a plea agreement requires knowing what is being accepted and what consequences it produces. The court must verify that the decision is given freely and with knowledge of its consequences. Before it is formalised, the defence must explain to the client the content of the agreement, the alternatives available and the foreseeable legal effects of the decision. The regulations also provide for the victim or injured party to be heard in certain cases, particularly due to the seriousness, significance, amount involved or vulnerability.

What if we consider it is better to go to trial?

Negotiating does not oblige the parties to reach an agreement. If, after studying the evidence, the charges and any existing proposal, we conclude that continuing the defence offers a legally more appropriate alternative, the strategy may be to maintain opposition and proceed to trial. The possibility of negotiating must be a tool at the service of the defence, not an objective in itself.

Economic Criminal Law and businesses

Plea agreements in Economic Criminal Law proceedings may present additional complexity. The same case may involve directors, officers, employees and the legal entity itself as persons under investigation or accused. Negotiation may affect each of them differently and must also be analysed from the perspective of civil liability, fines, confiscation, business continuity and any other consequences that may be applicable.

Plea agreement by a legal entity

Procedural law expressly provides for the possibility that an accused legal entity may enter into a plea agreement through its specially designated representative holding a special power of attorney. The company's position must be examined separately from that of the individuals under investigation or accused, particularly where there may be differing interests or strategies.

Civil liability

In many criminal proceedings, civil liability is an essential part of any negotiation. The sentence should not be the only factor analysed. The quantification of the harm, redress, the method of payment and the positions of victims and injured parties can be decisive in assessing a negotiated solution.

Can it be appealed afterwards?

A judgment based on a plea agreement is subject to a particularly limited system of challenge. For this reason, subsequent possibilities of appeal must not be used as a substitute for proper prior analysis. The fundamental decision is taken before entering into the plea agreement.

Experience and procedural strategy

Vox Legis acts in criminal proceedings of differing nature and complexity, in which the strategy may require negotiating, maintaining a defence oriented towards trial, or combining both possibilities at different stages of the process. Our approach is always based on the individual study of the matter. There is no identical solution for every case, and negotiation is not necessarily the best alternative in every case.

A team with genuine criminal law practice

The following professionals are actively involved in criminal proceedings in which the procedural strategy may include negotiation and, where appropriate, a plea agreement.

Frequently asked questions

Consult before making a decision

If you have been presented with a plea agreement proposal, there is a formal accusation, or the trial is approaching, it is advisable to analyse the situation before accepting a decision with definitive effects. To properly assess the proceedings, we will need to know the existing charges, the status of the case and the specific circumstances of the matter.