“Although escalating plea policies established pursuant to this Directive must be strictly enforced, prosecutors are not precluded from considering new information about a case. A material change of circumstances warranting an exception to the general plea escalation rule might include, but need not be limited to: a material change in the nature or strength of proofs available to the State or the defense; a trial court’s determination of the inadmissibility of evidence or testimony that the State intended to introduce; new information pertaining to the credibility of a witness; new information pertaining to a defendant’s willingness to cooperate; new information or legal/factual argument provided by the defense through discovery or plea discussions; the disposition of charges against a co-defendant, or a change in the position taken by the victim pertaining to a specific negotiated disposition or a change in the victim’s general desire that the case be resolved by trial rather than a negotiated guilty plea.
Nothing in this Directive should be construed to limit or discourage negotiations between the prosecutor and defense counsel before a plea offer formally is tendered. Nor does this Directive preclude or discourage negotiations during the period when a tendered plea offer remains outstanding and before it expires. Furthermore, a plea offer should not be set to expire before all required discovery has been provided. See Rule 3:13-3(a) (establishing the State’s pre-indictment discovery obligations that are triggered when the prosecutor makes a pre-indictment plea offer). Nothing in this Directive, therefore, would preclude a prosecutor from extending the time within which a defendant can accept or reject a plea offer before it expires and triggers the escalation policy.
The escalating plea system contemplated in this Directive relies on the case evaluation and screening process, which begins with the initial charging decisions made in accordance with Section 4 of this Directive. It cannot be emphasized strongly enough, moreover, that the effectiveness of an escalating plea system will depend on making certain that initial plea offers are reasonable and realistic. These initial offers must reflect an objective assessment of the available proofs in relation to the defense(s) likely to be raised at trial, the likely outcome of any motions to suppress evidence, the seriousness of the crime, the culpability of the defendant considering his or her background and role in the criminal event or scheme, and the sentence the court would likely impose if the defendant were to be convicted after a trial.”
Thus, there are more than enough flexible bases to deviate from the escalating plea policy and there is no reason to believe strict adherence to it will be the norm. a case in point is that new discovery is a basis to turn back the clock on the escalating plea. Most every case continues to produce new discovery from the state after a case is set for “plea cut-off.” Thus, that provision in itself is an ever-present basis to deviate from the escalating plea policy.
