The goal in a criminal case is generally to mitigate the consequences of the alleged crime. In other words, the defendant wants to achieve an outcome that is better than if they were convicted of the alleged crime. After we have completed the discovery process in a case, we may submit to the prosecution a deviation request. A deviation request is typically a written request to the prosecution asking them to offer a plea agreement to some lesser charge than what was originally charged.

For example, in an excessive speed case, we might ask the prosecutor to offer a plea agreement to a civil speeding violation with a fine. If the prosecutor agrees to this request, the defendant would be able to avoid the criminal component of the original charge. This would be a major improvement in outcome.

What is included in a deviation request?

In the deviation request, we present details about the defendant’s background. These details could include:

  • driving record
  • work-related awards
  • academic awards
  • academic transcripts
  • letters of recommendation
  • volunteer work and community service
  • hobbies
  • family life

The purpose of presenting these personal details is to personalize the defendant to the prosecution. Additionally, these kind of details can show that the defendant is generally a law-abiding, productive, contributing member of the community – i.e. someone who is not likely to commit a crime in the future.

Ideally, we can also include in the deviation request some factual argument that casts doubt upon the State’s allegations. For example, consider again the excessive speed case. Perhaps the citing officer alleges he paced the defendant’s vehicle to determine the defendant’s speed. If we have AVL data (GPS records) from the officer’s vehicle showing that he never reached the speed he alleges, that calls into question the truthfulness of the officer’s allegations. The discovery and disclosure process is critical to learning about possible factual defenses.

A great background coupled with a factual defense can together make for a compelling request.

Why would the prosecution grant a deviation request?

We cannot know exactly what motivates the decisions of prosecutors, but we can make some educated guesses. If we have a factual argument included in our deviation request, this might impact how a prosecutor views the chances of success at a trial. If a prosecutor believes a defendant has a reasonable defense, the prosecutor will be more willing to offer a deal.

We know that the vast majority of criminal cases do not go to trial. Just looking at the numbers, it is not possible for the prosecution to take every case to trial. They must reach agreements in most cases. The prosecution lacks the time, resources and staff to take every case to trial. Similarly, the courts could not accommodate every case going to trial either.

Finally, we like to think that prosecutors have a sense of justice and fairness that might cause them to consider giving a break to a good person who made an isolated mistake.