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THE INNOCENCE EFFECT IN PLEA BARGAINING
Oren Gazal-Ayal* and Avishalom Tor**
ABSTRACT
About 95% of all felony convictions in the United States are the result of
guilty pleas. To maintain such a high guilty plea rate, plea bargain
offers have to be very attractive, compared to trials. Most legal scholars
argue that these offers are attractive to guilty and innocent defendants
alike. Innocent defendants who cannot signal their innocence to the
prosecutor are unable to signal their innocence in a trial too. Hence,
like guilty defendants, they will bargain in the shadow of the trial, and
accept plea bargains that reflect the probability of conviction and
expected jury-trial sentence. Plea bargains, so we are told, lead to
wrongful convictions.
Many scholars argue that plea bargains should be curtailed because
they facilitate wrongful convictions. Others contend that plea offers can
only benefit innocent defendants, by offering them an alternative to the
risky trial, which may lead to a much harsher sentence. Yet even while
drawing contradictory conclusion regarding this practice, both camps
in the debate agree that plea bargains often lead innocents to plead
guilty. They simply argue about the normative implication of this result.
The decades-long plea bargaining debate is based on a combination of
scholarly beliefs and theoretical models, with little systematic evidence
to support either position. The present article draws on a diverse set of
empirical findings to reveal the innocence effect, whereby innocents are
significantly less likely to accept plea offers than their guilty
counterparts, even when these offers appear objectively attractive in
light of the evidence against them and the expected sanction at trial.
After substantiating the innocence effect, we examine its implications
for the plea bargaining debate, showing it requires both camps to
reevaluate their policy prescriptions and offering some new proposals
of our own to minimize false convictions, better to protect the innocent,
and improve the plea bargaining process.
Senior Lecturer, University of Haifa, Faculty of Law.
Visiting Professor of Law, Fordham Law School (Spring 2011); Senior Lecturer and CoDirector of the Forum for Law and Markets, University of Haifa Faculty of Law.
Earlier versions of this paper benefited from comments and criticisms by Hillel Somer ???. and
seminar participants at the University ???. ?? and ?? provided excellent research assistance.
*
**
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TABLE OF CONTENTS
Introduction ........................................................................................ 2
I. Empirical Evidence ..................................................................... 5
A. Exonerations Database............................................................ 7
B. The Tulia Case ...................................................................... 10
C. Alternative Accounts ............................................................ 11
II. Experimental Studies ............................................................... 15
III. Interviewing Convicts................................................................. 19
IV. Psychological insights ................................................................ 20
A. Evaluating the probability of conviction ................................. 21
B. Fairness-related preferences..................................................... 24
V. Normative Implications ............................................................... 26
A. Miminizng false convictions.................................................... 27
B. “Insuring” the innocent ............................................................ 30
C. Restrictions on plea bargains ................................................... 32
D. Agreements on a Simplified Criminal Process ........................ 34
Conclusion ........................................................................................ 36
INTRODUCTION
Plea bargaining dominates the criminal justice landscape in the United
States. About 95% of all felony convictions are the result of guilty plea
and most guilty pleas follow some sort of plea bargaining. 1 Most legal
scholars argue that innocent defendants are also among those who plead
guilty. Some argue that innocent defendants sometimes plead guilty
because of psychological weakness which leads them to submit to the
institutional pressures from the criminal justice system.2 Others suggest,
at the same time, that rational innocents may also accept plea offers,
with their discounted sanctions, to avoid the risk of a wrongful
conviction at trial. Accordingly, innocent (and guilty) defendants will
bargain in the shadow of the trial, and accept plea bargains that reflect
the probability of conviction and expected jury trial sentence. Plea
bargains, it is thus argued, is a major source of wrongful convictions.
In an effort to address this innocence problem, many legal scholars
argue that the plea bargaining should be curtailed.3 Others contend that
plea offers can only benefit innocent defendants, by offering them a
potential avenue to escape the risk of a much harsher sentence after a
1
2
3
See, e.g., Alschuler, Bibas
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wrongful conviction at trial.4 Yet even while drawing contradictory
conclusion regarding this practice, both camps in the debate agree that
plea bargains often lead innocent defendants to plead guilty. They only
differ on the normative implications of this result.
Thus, numerous articles use economic models and methodology to
examine, inter alia, how innocent defendants may rationally prefer to
plead guilty, because the risk of conviction at trial, coupled with the
harsher sentence expected after such a conviction, leads them to prefer
the relative leniency the plea bargain.5 The latter analysis is based on
the “shadow of trial” model, which is the dominant prescriptive theory
in the plea-bargaining debate.6 In the simplest version of this approach,
for instance, defendants calculate whether the anticipated post-trial
sentence, multiplied by the probability of conviction, is lower than the
plea offer sentence.7
Yet shadow-of-trial models commonly pay little attention to
defendants’ culpability per se. To wit, innocents – who may well face a
higher average probability of acquittal at trial – are expected to demand
a more lenient sentence in return for their guilty plea.8 However, if the
plea offer is accurately adjusted to defendants’ probability of
conviction, innocence in itself plays no role in the defendant's decision.9
This assumption, which is jointly held by both parties to the plea
bargaining debate, is false. Notwithstanding its dramatic importance for
the law, the consensus on the likelihood of innocents’ guilty pleas is
only based on scholarly beliefs and theoretical models, with little
systematic evidence to support either position.10 In contrast, the present
4
5
For a thorough review of the economic literature on plea bargaining see Oren
Gazal-Ayal & Limor Riza, Plea Bargaining and Prosecution, in CRIMINAL LAW
AND ECONOMICS 145 (Nuno Garoupa ed., 2009). For some of the more prominent
Articles see William M. Landes, An Economic Analysis of the Courts, 14 J.L. &
ECON. 61, 69 (1971); Gene M. Grossman & Michael L. Katz, Plea Bargaining and
Social Welfare, 73 AM. ECON. REV. 749 (1983).
6
Refer to the often use of critics of plea bargaining of this model (schulhofer,
alschuler langbein and others)
7
In more sophisticated versions, additional factors like risk aversion and cost of
trial are also taken into account.
8
See Grossman & Katz, supra note 5; Robert E. Scott & William J. Stuntz, Plea
Bargaining as Contract, 101 YALE L.J. 1909, 1947 (1992).
9
See Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 YALE L.J. 1979,
1984 (1992) ("Innocence by itself (that is, apart from its link to particular evidence)
can have only a small impact on the odds of conviction")
10
We found only two studies from the late 1970's early 1980's attempting to
examine the influence of innocence in plea bargaining. Larry W. Gregory, John C.
Mowen & Darwyn E. Linder, Social psychology and Plea Bargaining:
Applications, Methodology, and Theory, 36 JOURNAL OF PERSONALITY & SOCIAL
PSYCHOLOGY 1521 (1978) and Kenneth S. Bordens, The Effects of Likelihood of
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article draws on a diverse set of empirical findings to reveal the
innocence effect. We show that innocent defendants are significantly
less likely to accept plea offers than their guilty counterparts, even when
these offers appear objectively attractive in light of the evidence against
them and the expected sanction at trial. This innocence effect should
turn the plea bargaining debate upside down.
While we are not the first to criticize the shadow-of trial model in
the criminal arena, our analysis and its policy implications substantially
differ from the common critiques of this model. The main line of
criticism of that model argues that defendants' decisions are not
systematic enough to allow prediction of their bargaining strategies,
because defendants are irrational, lack the abilities to make a calculative
decision, or suffer from bad representation.11 Yet like other scholars in
the field most advocates of this critique rely on intuition or anecdotes
alone. Several recent papers, most prominently Stephanos Bibas,
theoretically apply extra-legal psychological insights to analyze
defendants' decisions, sometimes reaching erroneous results because
they like direct evidence on plea behavior.12 Absent empirical basis,
none of these studies exposed the innocence effect.
Studies of procedural fairness similarly reveal the limitations of the
dominant shadow of trial model.13 These studies show empirically that
defendants' satisfaction with the criminal process and people's
willingness to accept its legitimacy depend not only on the results of the
process but also on its perceived fairness. Despite the commonality with
our approach, however, our analysis differs from the procedural fairness
literature in two important aspects. First, we focus on the result, rather
Conviction, Threatened Punishment, and Assumed Role in Mock Plea Bargaining
Decisions, 5 BASIC & APPLIED PSYCHOLOGY 59, 65 (1984). A search for these
studies in Lexix found that each of them was only mentioned once. We will refer
to these studies below. We will also refer to experimental tests we conducted
together with Stephen M. Garcia: Avishalom Tor, Oren Gazal-Ayal & Stephen M.
Garcia, Fairness and the Willingness to Accept Plea Bargain Offers, 7 JOURNAL OF
EMPIRICAL LEGAL STUDIES (2010) [Add full correct reference]
11
Refer to Alschuler, the defense attorney's role – schulhofer, plea bargaining as
disaster, more.
12
See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV.
L. REV. 2463 (2004). See also Rebecca Hollander-Blumoff, Social Psychology,
Information Processing, and Plea Bargaining, 91 MARQ. L. REV. 163 (2007);
Russell D. Covey Reconsidering the Relationship Between Cognitive Psychology
and Plea Bargaining, 91 MARQ. L. REV. 213 (2007); Richard Birke, Reconciling
Loss Aversion and Guilty Pleas, 1999 UTAH L. REV. 205 (1999). Say here that
Bibas assumes that innocent defendants are more likely to take the plea, especially
when they are not informed. We show that the opposite is correct.
13
For review of this literature see Tom R. Tyler, Social Justice: Outcome and
Procedure, 35 INTERNATIONAL JOURNAL OF PSYCHOLOGY 117 (2000)
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than process, of the criminal case. Second, we provide empirical
foundations for predicting defendants’ behavior instead of their
perception.
We substantiate the innocence effect with both field and laboratory
findings. Part I analyzes field data from several hundreds of wrongfully
convicted defendants who were later exonerated, showing that only a
fraction of these wrongful convictions resulted from guilty pleas, in
sharp contrast with the very high percentage of guilty pleas in the
general population of convictions. We further examine alternative
accounts for this dramatic difference in plea rates and conclude it should
be attributed, at least in part, to the innocence effect. This Part also
reviews illustrative anecdotal evidence that further supports our
exonerations-based findings.
Part II then provides evidence for the innocence effect from the
few available experimental studies, both earlier ones and our own, more
recent, research. These studies are particularly valuable in corroborating
the suggestive field evidence in controlled settings and helping indentify
the causes of the innocence, thus laying a foundation for a later analysis.
Part III further complements the preceding evidence of the innocence
effect, drawing on retrospective studies of convicted defendants,
showing that their guilt or innocence plays a central role in their plea
decisions.
In Part IV we explore the causes of the innocence effect, showing
it to result from a combination of fairness-related preferences and a
systematic, overoptimistic, bias on the part of innocents regarding their
probability of acquittal.
Finally, in Part V we critically examine the implications of the
innocence effect and its underlying causes for the plea bargaining
debate, showing it requires both camps to reevaluate their policy
prescriptions and offering some new proposals of our own to minimize
false convictions, better to protect the innocent, and improve the plea
bargaining process.
I. EMPIRICAL EVIDENCE
At least at first sight, when plea bargaining is conducted in the
shadow of the trial, innocent and guilty defendants are equally likely to
resort to plea bargains. Regardless of the defendant's guilt, the
prosecutors and defense attorney should estimate the likelihood of
conviction and the expected sentence after such conviction, and adjust
the plea bargain to these factors. Prosecutors often offer sentences
which are much more lenient than the expected post-trial sentences, in
order to assure that the vast majority of the defendants agree to the
deals. The level of leniency depends on the prosecutors' caseload which
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determines the number of trials they can handle. In most jurisdictions in
the United States, the guilty plea sentence is low enough to assure that
about 95% of defendants take the plea.
Innocence, in this setting, plays only a minor role, if at all. True,
one should hope that innocent defendants, on average, face weaker
cases (i.e. a lower probability of conviction at trial). Yet, most weak
cases are dismissed at earlier stages; the risk to innocent defendants is
substantial mainly in the rare situations where the case against them is
relatively strong. Moreover, according to the shadow of trial model,
plea bargains are just as likely in strong and weak cases. Prosecutors
only need to adjust the offer to the probability of conviction in order to
reach an agreement. Thus, weaker cases result in more lenient plea
bargains, and stronger ones in relative harshness, but both result in an
agreement.
Admittedly, when the case is weak, the parties must rely on charge
bargaining to make the necessary adjustment, in order to avoid judicial
rejection of the agreed sentence. But it is hardly an obstacle. Charge
bargaining in weak cases is not the exception; it is the norm all around
the country.14 Thus, even if the evidence against innocent defendants is,
on average, weaker, the likelihood of plea bargains is not dependent on
guilt.
In fact, plea bargaining should even be more likely in weak cases.
There are many indications that prosecutors are willing to go a long way
to avoid losing cases.15 Thus, they are less concerned with handling a
full-fledged trial when the case is strong than they are when the case is
weak. Of course, this usually leads them to dismiss weak cases, but
when prosecutors decide to proceed with such weak cases, they are
often willing to go a long way to assure that a plea bargain is struck.
When a jury trial is very likely to result in conviction, prosecutors are
less eager to extract a plea. Hence, guilty plea rate in weak cases is
expected to be higher than in strong cases, if defendants make decisions
in the shadow of trial.
14
See Ronald F. Wright & Marc L. Miller, The Screening/Bargaining Tradeoff, 55
STAN. L. REV. 29 (2002).
15
See Robert Rabin, Agency Criminal Referrals in the Federal System: An
Empirical Study of Prosecutorial Discretion, 24 Stan. L. Rev. 1036, 1045 (1971)
(concluding, based on interviews with federal prosecutors, that convictions are the
central performance standard and an increase rate of non-convictions raise
questions and create anxieties); See also Bibas, supra note 12, at 2472
("[Prosecutors] may further their careers by racking up good win-loss records, in
which every plea bargain counts as a win but trials risk being losses."); Albert W.
Alschuler, The Prosecutor's Role in Plea Bargaining, 36 U. CHI. L. REV. 50, 10607 (1968) (noting that prosecutors are often measured by the rate of convictions
and thus care much more about conviction than sentencing).
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To examine this hypothesis, we need to sample accurate and
wrongful convictions and compare the guilty plea rates in both.
Obviously, this is impossible without information about the actual guilt
of convicted defendants. Yet, this difficulty can be overcome by
analyzing known cases of wrongful conviction and comparing them to
convictions of other similar cases. We use two different datasets for that
purpose: one, a compiled database of known exonerations and, two, a
database of defendants wrongfully convicted in the Tulia scandal. If the
shadow of trial model is correct, we should expect plea bargaining to be
as common in these wrongful conviction cases as it is in all other cases,
which are likely to include mostly guilty defendants. Yet, if the
innocence effect hypothesis is correct, innocent defendants, i.e.
defendants that were later found to be wrongfully convicted, are
expected to go to trial much more often than other defendants.
After showing that the wrongfully convicted defendants are much
less likely to plea bargain, we discuss several alternative explanations
for the results, and show that the innocence effect is the most likely
explanation.
A.
Exonerations Database
Using several sources16 we compiled a database of 973
exoneration cases, meaning cases which resulted in a conviction
which was later overturned when new information revealed that the
defendant was factually innocent.17 We used only cases from the 20th
and 21st centuries. We categorized the records in the database based
16
Samuel R. Gross, Convicting the innocent, UNIVERSITY OF MICHIGAN PUBLIC
LAW WORKING PAPER NO. 103, ANNUAL REVIEW (2007). Available at SSRN:
http://ssrn.com/abstract=1100011; Samuel R. Gross, Kristen Jacoby, Daniel J.
Matheson, Nicholas Montgomery & Sujata Patil, Exonerations in the United states
1989 through 2003, 95 J CRIM. L. & CRIMINOLOGY 523 (2005); THE INNOCENT
PROJECT, http://www.innocenceproject.org (last visited 14.4.2011);
NORTHWESTERN CENTER ON WRONGFUL CONVICTIONS,
http://www.law.northwestern.edu/wrongfulconvictions/exonerations/usIndex.html
(last visited 14.4.2011).
FOREJUSTICE: WRONGLY CONVICTED DATABASE INDEX,
http://forejustice.org/db/innocents.html (last visited 14.4.2011). INNOCENCE
PROJECT NEW ORLEANS, http://ip-no.org/exonerees (last visited 14.4.2011);
TRUTH IN JUSTICE, http://www.truthinjustice.org (last visited 14.4.2011).
JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED,
http://www.justicedenied.org/ (last visited 14.4.2011).
17
From the sources above we combined a dataset of 1041 exoneration cases. After
excluding 54 cases due to lack of sufficient information about the case, and another
14 cases from the 19 century we remained with a subject group of 973 cases.
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on the following variables: the type of felony (mostly rape or
murder), the year of the wrongful conviction, the year of
exoneration, the sentence, the type of conviction (plea or trial), the
causes for the mistaken conviction18 and the type of exonerating
evidence.19 In the guilty plea-cases we also added whether the
defendant was facing a death sentence if convicted at trial. The
information about each case was gathered from the sources
mentioned in footnote 16 above and from searches of the cases on
the web.
An analysis of the categorized data revealed that only 68 of
973 (7%) of the exonerated were convicted following a guilty plea;
in the remaining 93% of these cases, an erroneous jury decision led
to the conviction. This 7% rate stands in sharp contrast to the
common rate of guilty pleas in felony cases; throughout most of the
twentieth century, guilty pleas accounted for 75% to 90% of felony
convictions (Alschuler 1979).20 In fact, the 99% confidence interval
around the 7% rate in our sample data has a lower bound of 4.9%
and an upper bound of 9.1%. The dramatic difference between this
confidence interval and the general guilty plea rate of felony cases
further emphasizes the strong tendency of innocents to opt for a trial
notwithstanding conviction odds.
Intriguingly, most of the defendants who pleaded guilty to the
crime they did not commit did so after wrongfully confessing to the
crime during the police investigation (45 of 68 cases, 66.18%). This
result indicates that guilty plea which follows a confession is less
reliable than other guilty pleas. Yet, it also indicates that the
18
The causes were eye witness misidentification (563 cases), expert testimony (81
cases), police misconduct (167 cases), prosecutors misconduct (144 cases), false
confessions (154 cases), false testimony of an informant (173 cases), ineffective or
no representation, alleged scientific evidence (93), alleged suspicion statement of
the defendant (18), erroneous polygraph results (1), pre-DNA hair analysis (28). In
most cases, more than one cause led to the miscarriage of justice.
19
The exonerating evidence were DNA (296 cases), real culprit found (301 cases),
solid alibi proved (37 cases), informant reversed testimony (92 cases), the murder
victim was found alive (7 cases), fingerprints (7 cases), ballistic tests (13 cases),
blood tests (13 cases). In some cases, more than one proof led to the exoneration.
20
All the cases in the database refer to trials in the twentieth and the twenty first
centuries. Importantly, guilty plea rates remain at a comparably low 6.5% (42 pleas
of 645 cases) even when examining only post-1970 cases. Furthermore, Gross et
al. (2005) obtained a similar guilty plea rate upon examining 340 exonerations
which took place between 1989 and 2003. They found 20 defendants of the 340
wrongfully convicted defendants (5.9%) pleaded guilty. Thus, this 6% rate of
guilty plea seems to represent old and new exoneration cases alike.
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innocence effect is even stronger when the innocent defendant did
not confess to the crime. Only 23 defendants of the 812 (2.8%)
exonerees who did not confess during the police investigation, pled
guilty. The 99% confidence interval around the 2.8% rate in this
sample data has a lower bound of 1.31% and an upper bound of
4.29%.21
We also analyzed each of the common offenses in the
database separately to get a more nuanced perspective on the data.
Although a simple comparison of the raw plea rates for known
wrongful convictions versus convictions in general makes the
differences between the two groups readily apparent, we conducted
further statistical tests to underscore these dramatic differences.
However, our database spans over a century of cases, while recordkeeping for U.S. Department of Justice annual felony statistics
(published through the Bureau of Justice Statistics) is relatively new.
We therefore used 1990, the earliest record we were able to obtain,
as a benchmark year for comparison. The data for 1990 was then
compared to a subset (N=526) of the 973 wrongful conviction cases
in the database. These were the cases whose conviction years
spanned from 1980 onwards.
Echoing the general pattern found above, only 8% (42 of
526) of the 1980-2000 subset entered guilty pleas, compared to the
91% plea rate among all convicted defendants of violent crimes in
the benchmark year 1990. Among the 198 rape and sexual assault
exonerations during this timeframe, only 10 followed a guilty plea,
which constitute 5.05%; this figure is obviously significantly
different from the 95% guilty plea rate among rape and assault
convictions in 1990. Among murder and manslaughter cases, we
found a guilty plea rate of 7.7% among exonerated defendants (22 of
286). Here too, the difference between this 7.7% rate and the 90%
benchmark guilty plea rate among comparable convictions is still
dramatic and highly significant. The relatively high number of guilty
pleas in these cases may have resulted from the risk of a death
sentence at trial; in fact, at least 16 of these 22 defendants explained
their guilty plea was driven by their fear of capital punishment. It is
therefore possible that when bargaining is conducted in the shadow
of the death sentence, even innocents are more likely to plead guilty.
21
Discussing why false confession impact on the defendants' willingness to plea is
beyond the scope of this article.
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It is plausible, though, to argue that innocent defendants who
plead guilty tend not to challenge their convictions, and hence their
misfortune is less likely to be revealed.22 We will discuss this
alternative explanation below. Still, to reduce the risk of such
selection bias in the database, we examined, separately, the subset of
cases in which the exoneration resulted from events which are less
likely to depend on the defendants' effort. Seven defendants in the
database were exonerated after the alleged murder victim appeared
alive. All of these seven defendants pleaded not guilty and convicted
by jury trial. Similarly, 235 defendants were exonerated only after
the real offender was revealed.23 Even in this subset of exonerations,
only 8.9% of the convictions resulted from guilty pleas (21 of 235).
This percentage is not significantly different from the remaining 49
of 738 exoneration cases in the database (6.64%) that followed guilty
pleas.
B.
The Tulia Case
In the small town of Tulia, Texas, one corrupt, undercover
police officer framed about 38 people in allegedly independent cases
of drug trafficking.24 Years later, they were exonerated and
compensated, and the officer was convicted of perjury. The behavior
of these unrelated innocent defendants who knew that a police officer
was willing to testify that they sold him cocaine can indicate how
innocent defendants behave.
The first eight defendants, who were brought to trial
consecutively, made no attempt to plea bargain, and, as a
consequence, were sentenced to terms ranging from 20 years of
imprisonment to 434 years after jury trials. Among them was, for
example, Joe Moore, who rejected his lawyers repeated advice to
plea bargain on the eve of the trial, even though he was told that they
would not be able to follow up on the officer's testimony at the time.
With two previous drug offences in his record, with no alibi, and
with his word against the word of a white police officer, his lawyer
22
See Huff, Rattner, and Sagarin 1996
In fact, 300 defendants were exonerated after the real offender was revealed
however, in 65 cases there were additional evidence leading to the exoneration.
Here we refer only to the remaining 235 exonerees.
24
In fact, forty three people were arrested and all but one were charged but charges
against four defendants were dropped at later stages when these defendants
presented a solid alibi.
23
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was right to argue that he had no chance at trial.25 Similarly, Fred
Brookins, who knew that five defendants before him were convicted
based on the testimony of the same officer that was about to testify
against him, rejected a deal for five years of imprisonment on the eve
of the trial, against his lawyer's strong advice, arguing that he
shouldn't plead guilty to something he didn't do. After the jury trial,
he was sentenced to 20 years of imprisonment.26 Considering the
rarity of jury trials in felony cases in Texas (only 4% of the felony
convictions in the state result from trials), the independent decisions
of these eight defendants support the innocence effect hypothesis.
True, following the harsh sentences imposed on these first
eight defendants, only three more similarly situated defendants went
to trial. The other 27 defendants pleaded guilty, most of them to nonincarceration sentences. The behavior of the later 30 defendants
indicates that when the plea concession is very substantial, and when
the high likelihood of conviction at trial is very vivid (here, as the
result of the conviction of the first eight defendants) even innocent
defendants are likely to accept a plea bargain. Still, even when all of
the defendants in the case are considered, the trial rate of the Tulia
defendants was about 30% (11/38), much higher than the regular rate
of jury trials in Texas (about 5%).27 The 99% confidence interval
around the 30% rate in this sample data has a lower bound of 10%
and an upper bound of 48%.
C.
Alternative Accounts
The empirical result above seems to contradict the shadow of
trial model, and indicates that innocence, in itself, has an effect on
the willingness to plead guilty. However, before we adopt the
innocence effect hypothesis, we should address several alternative
25
See NATE BLAKESLEE, TULIA: RACE, COCAINE AND CORRUPTION IN A SMALL
TEXAS TOWN 44-45 (2005). Moore was frustrated by his lawyer's lack of trust and
asked to dismiss him, but the court rejected his request, as well as a request for
continuance in order to examine the credibility of the officer. Even after his
requests were rejected, he refused to accept plea bargain offers and, as expected,
was easily convicted and sentenced for 99 years of imprisonment, after a trial that
lasted less than a day.
26
Id. 148.
27
Based on the BJS (show based on the table in the web the rate of jury trials in
Texas in generally and in small counties specifically [say that the result remains
even if all counties are examined) [We used the Bureau of Justice Statistics (2001)
to compile the rate of guilty pleas in felony cases in rural counties with fewer than
50,000 inhabitants in Texas, which resemble Tulia's Swisher County.]
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explanations to the relatively low rate of guilty pleas among innocent
defendants.
First, one can argue that when defendants are innocent, the
cases against them are weaker on average, and hence, they are less
willing to plea bargain. However, as long as the prosecutors know
the strength of the cases, this should not impede a plea bargain. We
have shown above that prosecutors are willing and able to adjust the
post-plea sentence to the probability of conviction using charge, fact,
and sentence bargaining.28 The substantial sentence discounts offered
to the Tulia defendants are just another example of such
prosecutorial behavior.29 Moreover, want to maintain a high
conviction rate.30 Trials in strong cases do not endanger their
conviction rate; trials in weak cases do. Thus, they dismiss most of
the weak cases, and make a special effort to induce a guilty plea in
the weak cases which were not dismissed. This effort comes in the
form of very attractive deals to these defendants. On the other hand,
prosecutors are less worried about conducting jury trials in strong
cases. Hence, it seems it is the innocence, and not the weakness of
the evidence, which plays a role in the decision to choose a trial.
Second, one might argue that the low rate of plea bargains
with innocent defendants results from a rational evaluation of the
trial result. Since trials are designed to reveal the truth, Innocent
defendants might rationally estimate that their chances are better than
guilty defendants. Prosecutors cannot know which defendants are
innocent and hence they cannot take innocence into account when
adjusting the plea offer to the probability of conviction. Therefore,
this information asymmetry hinders the negotiation with innocent
defendants.31
While this information asymmetry has some effect, its
magnitude should not be overstated. Trials, like plea bargaining, are
affected by evidence. To the extent that the innocence is not reflected
in the evidence, it has little effect on the trial, and hence it should not
affect the bargaining in the shadow of the trial.32 To the extent that
28
Refer to the discussion of charge bargaining
Refer to the substantial offers given to the Tulia defendants as mentioned in the
text.
30
Reference
31
Refer to grossman and kats , scott and stuntz
32
Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 YALE L.J. 1979, 1984
(1992) ("Innocence by itself (that is, apart from its link to particular evidence) can
have only a small impact on the odds of conviction")
29
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innocent defendants have evidence which can assist them at trial,
they can use it during plea bargaining too. True, in few rare cases,
innocent defendants might prefer to conceal the exonerating evidence
in order to surprise the prosecution at trial, but in most cases, rational
innocent defendants would rather use such evidence earlier to
convince the prosecutor to dismiss the case, or, at least to agree to a
better plea bargain. Thus, it is hard to believe that almost all of the
wrongfully convicted defendants in the exoneration database did not
settle the case simply because they knew their chances of acquittal at
trial were high, and the prosecutor did not. Moreover, from the
account we have about the Tulia defendants we know that these
defendants could not rationally expect that the trial result would be
different than it really was.
Furthermore, prosecutors are usually willing to go a long way
to secure a plea bargain, especially when there is a real chance that
the trial will not result in a conviction. They know that different
defendants have different attitudes toward risk, different estimations
of trial results, and different characters, and they must offer
substantial leniency to assure that almost all defendants will be
willing to plea. To assure that plea bargains are accepted by more
than 90% of the defendants, prosecutors must be willing to offer
deals which are attractive, not only to the average defendant, but to
almost all of the defendants. Therefore a small difference in the
parties' estimations of the trial result should not prevent them from
reaching an agreement.
Note that we do not argue that innocent defendants always
correctly estimate their chances at trial. To the contrary, as we show
below, cognitive biases lead innocent defendants to be overoptimistic
about their chances at trial. Here, we only argue that it is unlikely
that the huge gap in guilty pleas of innocent and guilty defendants is
explained by the rational assessment of innocent defendants that the
trial would produce exonerating evidence, even though they are
unable to reveal this evidence before the trial.
Another limitation of our conclusion lies in the
representativeness of the exoneration database. It might be argued
that the proportion of innocent defendants who plead guilty is around
90% - as it is with the guilty defendants – but the exoneration
database depicts an unrepresentative subgroup of these wrongful
convictions in some relevant aspects.
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For instance the exonerations database refers mainly to
murder, manslaughter, and sex offences. The Tulia scandal refers to
drug trafficking offences. It is possible that in less serious offences,
innocent defendants plead guilty more often. However, this does not
pose a substantial limitation on our findings, as long as we limit them
to these serious offences.
Alternatively, there might be some correlation between the
defendants' plea and their chances of exoneration. It is possible that
many innocent defendants plead guilty and after such a plea, they do
not try to overturn their conviction. On the other hand, the few
innocent defendants that opt for a trial are also more vigorous in their
post conviction attempts to be exonerated. If that is the case, the
exoneration database only depicts the innocent defendants who are
willing to defend themselves at trial, and later keep on challenging
their innocence, and misses the majority who do not.
One way of responding to this shortcoming of our database
was discussed earlier. As we showed above, the guilty plea rate in
the wrongful convictions database remains almost the same even
when we analyze the subset of exonerations that resulted from the
detection of the offender, and not mainly from the efforts of the
defendant. True, some real offenders might be revealed because the
wrongfully convicted person kept on challenging his conviction, yet,
we believe that it is highly unlikely that this is the case in over 90%
of these cases, as the data suggests.
Another, and in our view, even more convincing response to
the selection bias argument lies in the behavior of the Tulia
defendants. These defendants were not exonerated as a result of their
efforts. In fact, the efforts to exonerate these defendants were
initiated by pro-bono lawyers who heard of the case only after the
first eight defendants were convicted. It seems that the refusal of so
many defendants in the Tulia scandal to bargain can only be
explained by the innocence effect hypothesis.
The Tulia database is important in other aspects too. The
detailed information we have on the Tulia cases can assure us that
there were no unique factors which could explain the high rate of
trials other than the innocence effect. We know that the objective
probability of conviction was high, that the defendants were told that
it was high by their lawyers (and could have known it was high
based on the experience of their predecessors), that at least some of
them were offered very lenient plea bargains, and that when they
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decided to plead not guilty, they did not do it because they planned to
surprise the prosecutor with new exonerating evidence at trial.33
These details do not support the alternative explanations to the
innocence effect hypothesis.
Thus, our analysis of exoneration statistics suggests innocent
defendants are more likely to reject plea offers. Though we think
these findings are best explained by the innocence effect, we agree
that we cannot totally reject other potential explanations based on
these findings alone. We thus turn to analyzing experimental studies
which, as we show below, also support the innocence effect
hypothesis.
II. EXPERIMENTAL STUDIES
Empirical studies that rely on existing data enjoy the benefit
of external validity - i.e., the relevance of their conclusions to the
real world is unquestionable - and there lies the secret to their
power.34 However, such studies are limited in their ability to control
variables that cause the examined phenomenon, because a large
number of factors affect the occurrence of phenomena in the real
world.35 This limitation is reflected in the analysis of the findings in
Part I c. above, when we saw, for example, that the significant
difference between the behavior of the innocent to that of the guilty
can also be attributed to the characteristics of the sample or to the
information gaps between the innocent defendants and the
prosecution.
Conversely, the experimental methodology can isolate the
various factors affecting the behavior of defendants in a plea bargain,
as the studies described below will demonstrate. This advantage of
the experimental approach stems from its ability to compare the
behavior of different groups of subjects while controlling the
relevant variables. Typically, the investigator will perform a
manipulation on a single variable (“the independent variable") in one
group of subjects but not in another group, which will serve as a
control group. If we find a systematic difference between groups in a
measured variable ("the dependent variable") that would have a
33
See BLAKESLEE, supra note 25.
See Avishlom Tor, The Methodology of the Behavioral Analysis of Law, 4 Haifa
Law Review, 237, 281-291 (2008).
35
Ibid.
34
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statistical reliability, it could be attributed to the effect of the
independent variable. The obvious advantage of the experimental
approach lies in its ability to control variables, thus strengthening the
validity of its conclusions regarding the relationship between
variables in the environment of the experiment. This advantage also
raises an inevitable question about the external validity of the
findings of the experiment. We refer to the findings of psychological
experiments that examine human behavior, so the external validity
depends on the similarities and differences between the experimental
environment characteristics and the relevant characteristics of the
reality to which one would seek to attribute the findings of the
experiments.36
In the context at hand - regarding plea bargains with criminal
defendants – there seems to be an embedded difficulty in creating an
experimental environment with external validity. First, it is possible
that criminal defendants possess different psychological
characteristics than the rest of the population, but of course there is
an obvious difficulty in using defendants as subjects to an
experiment. Second, and mainly, the nature of the dilemma that the
criminal defendant is facing - especially when charged with serious
crimes involving a long prison term - makes it difficult for a
convincing simulation in an experimental environment. Third, and as
a continuation of the above, even in minor offences and punishments,
cataloging subjects as defendants without their knowledge
necessarily involves an element of deception that raises significant
ethical issues.37
However, it does not seem that the difficulties involved in
using an experimental approach to examine decision-making by
defendants justify a complete waiver on attempting to examine the
issue using a methodology that has findings with internal validity.
Furthermore, this eclectic approach that combines field research with
36
See: Robert Rosenthal & Ralph L. Rosnow, Essentials of Behavioral Research:
Methods and Data Analysis (3rd ed. 2007). For Discussion about the benefits and
limitations on the use of experimental methodology, see: Tor, ibid, and also:
Avishalom Tor, On Contractual Defaults and Experimental Law and Economics,
163 Journal of Institutional and Theoretical Economics 26, 28 (2007) (on the
importance of taking the unique characteristics of the judicial system in to account
when constructing experimental research
37
For a review on the ethical restrictions on human experimentation, see, for
example, Tor, Contractual Defaults, ibid. yet. It should be noted that another
study, conducted several decades ago, used a similar simulation, as described
below.
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experimental research can provide a more comprehensive and valid
empirical picture of the test subject, as each of the methodologies
compensates for weaknesses of the others.
Indeed, the findings from the field described in part I.c. above
clearly show that in the real world there is a systematic difference
between the willingness of innocent and guilty defendants to accept
plea bargains. These findings therefore provide a significant solution
to the problem of external validity, but leave the need for a thorough
examination of the variables that affect the willingness of defendants
to accept plea bargains.
However, an examination of the literature reveals that only a
few experimental studies have examined the behavior of defendants
in a plea bargain. Moreover, except for research we recently
conducted,38 the other relevant studies that are few in number were
held in the late seventies and early eighties of the last century, before
the shadow of the trial model was established. For this reason, these
studies did not make a conscious attempt to compare the findings to
the shadow model. In addition, the structure of the experiments and
the system in which the findings were reported prevent such
comparison in retrospect.39
Despite their limitations, these studies also reinforce the
hypothesis that innocence affects the willingness of defendants to
plead guilty. In all of these studies the subjects were given
information about the charges they were facing and either the
evidence in the case or the probability of their conviction. Also,
some of the subjects were told that they committed the offense while
others were told the opposite. All studies showed much less
willingness to plea bargain among defendants who did not commit
the offense they were charged with.40
To establish the relevance of the experiment’s findings in the
context at hand, one study also examined the behavior of the subjects
who were placed in a situation where they were accused of
38
See, Tor, Gazal-Ayal & Garcia, supra note 5.
See Ibid.
40
In the study by Gregory, Mowen & Linder, supra note 10, p.1524, 83% of the
guilty defendants and 18% of the innocent defendants accepted the offer. In the
study by Bordens, supra note 10, 79.6% of the guilty defendants and 20.3% of the
innocent defendants accepted the offer. In the first experiment in a research we
conducted 67% of the guilty defendants and 20% of the innocent defendants
agreed to the offer presented to them. See: Tor, Gazal-Ayal & Garcia, supra note 5.
39
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committing a disciplinary offense at the university, without them
knowing that the accusations they were presented with was a part of
an experiment.41 In that case, sixteen psychology students who were
waiting in line for a test met, seemingly at random, a man posing as a
student. The impostor told half of the subjects that most of the
answers to the questions on the test are “B” and to the other half he
said nothing meaningful. After the test, all subjects were summoned
to a clarification meeting and were told that the test results raised
concern that they did not solve the test on their own. Each and every
one of them was offered some sort of a plea bargain instead of
proceedings before the department’s ethics committee. While six out
of eight subjects who received information about the test agreed to
the arrangement, the remaining eight who did not receive any
information regarding the test refused to do the same. Since the
evidence presented to the innocent and guilty students was identical,
and no student ("innocent" or "guilty") had access to evidence that
could lead to an acquittal, it is reasonable that there were no
significant differences in the chances of conviction for all of the
students in general (though it may well be, as we shall later show,
that the innocent assessed their chances to be better than those of the
guilty, although there was no rational objective basis to that
assessment). This finding reinforces the conclusion that innocence
has an independent influence on the assessment of the chances of an
acquittal or on the willingness to agree to a settlement.
In addition, the behavior of the innocent and the guilty in this
experiment – in which they believed in their innocence or guilt, as
the case would be – resembled the behavioral characteristics of
subjects in similar experiments who used questionnaires in which
innocence and guilt were only hypothetical. This similarity
reinforces the assumption that in a plea bargain, as in many other
areas of human behavior, experimental studies based on hypothetical
surveys generally reflect the existing trends outside of the laboratory
and are therefore a valuable source for the study of plea bargains.42
41
See Mowen & Linder, supra note 10, p. 1526-1528
In addition, an exceptional study examined the impact of procedural elements of
the criminal procedure on decisions made in the framework of plea bargains. This
study compared criminal defendants to typical subjects (university students) and its
findings showed that the vast majority of the variables examined had a similar
effect on both groups. See Pauline Houlden, Impact of Procedural Modifications
on Evaluations of Plea Bargaining, 15 Law & Soc’y Rev. 267 (1980). This finding
also contributes to the external validity of the typical experimental methodology in
the context at hand.
42
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These studies, therefore, despite their inherent limitations, support
the assumption that innocence has an independent influence on the
decisions of defendants, contrary to predictions of the “shadow of the
trial” model.
III. INTERVIEWING CONVICTS
A third research group relies on questions addressed to defendants in
retrospect, after the criminal proceeding has ended. In this research
group, some researchers showed that considerations of expediency on which the shadow model is based upon - are not the first to be
taken into account in terms of their importance to formulating a
decision in the matter at hand. These studies have shown that many
defendants plead guilty simply because they are in fact guilty, and on
the other hand, defendants that allege that they are innocent, explain
that they plead "not guilty" for the reason that they are not guilty.
For example, one study shows that the most common answer
to the question "Why did you plead guilty?" is "Because I'm guilty".
Answers that relied on utilitarian considerations were far less
common (the desire to quickly end the proceedings was a major
reason for 10% of the defendants, and the desire to gain lighter
penalty was the main reason for 5% of the defendants only).43
Similarly, almost everyone who pled not guilty explained their
actions by claiming that they did not commit the offense or that the
act committed did not constitute an offense in their opinion. 44 In
many cases, these defendants told the researchers that they pleaded
not guilty even though they would have decided differently if they
would have base their decision on expediency considerations.45
Similar findings were shown in a research carried out by Ami
Kobo in Israel.46 Kobo interviewed about 400 defendants
immediately after their plea in the Israeli Magistrate Court. When
asked "Why did you plead guilty?" or "Why did you plead not
guilty?" most of the defendants answered consistently that they did
so because they spoke the truth or because they committed the
offense (53%). Only a few of the defendants mentioned expediency
43
ANTHONY E .BOTTOMS & JOHN D. MCCLEAN, DEFENDANTS IN THE CRIMINAL
PROCESS 111 (1976).
44
ibid, in p.131
For a more detailed analysis of this study See infra note ???.
46
AMI KOBO, INCONSISTENT PLEADERS IN COURT - PLEADING GUILTY AND
CLAIMING TO BE INNOCENT (2009) (in Hebrew).
45
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considerations such as the desire to end the case (10.2%), a plea
bargain, or an expected penalty relief pending on admission (11.2%).
Another common reason that was given was "I was caught redhanded" or similar versions of the same reason (23.7%). Most of the
defendants who pled not guilty stated their very innocence as a top
priority consideration in their decision to deny guilt.
The main disadvantage of these studies stems from the
concern that defendants give a distorted or false version of the truth
in an attempt to present themselves in a positive light. However, in
order to address this concern studies are usually conducted after the
proceedings have ended, when the defendant knows that his or her
statements will have no effect on the outcome of the trial. Moreover,
as we shall later show, there were times when defendants actually
presented themselves in a negative light. For example, the vast
majority of defendants who pleaded guilty in trial (that is to say,
most of the subjects in these studies) also admitted committing the
offense in the survey and even stated that the main reason for their
willingness to plead guilty was that they in fact had committed the
offence they were accused of. Even if the credibility of those who
claimed to be innocent during the survey is questionable, it is hard to
believe that respondents who admitted committing the offense did so
to present themselves in a positive light. Therefore, one can probably
learn from these studies that the subjective guilt of defendants is
perceived by them as a significant consideration in their decision to
plead guilty.
In Conclusion: Although each of the three methodologies
presented here suffers from various limitations, the broad range of
studies concludes that innocent defendants show less willingness to
accept plea bargains than guilty defendants. The question yet to be
answer is why. We turn to this question now.
IV. PSYCHOLOGICAL INSIGHTS
The findings presented in the previous section indicate that
innocent defendants are less willing to plead guilty, as required in a
plea bargain, than guilty defendants who are facing similar charges
and evidence. These findings are not sufficient by themselves in
order to establish an effective legal policy for the issue at hand.
Doing so would require the examination of the leading causes of the
systematic difference between the innocent and the guilty. For
example, there may be room to implement a certain legal policy in
cases in which the innocent prefer to refuse plea bargains despite
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being aware of their objective chances of conviction. But, when
handling cases in which innocent defendants’ refusals stem from
over-optimism about the outcome of the trial, a different legal policy
should be implemented. It is therefore important to try and
summarize the findings that may shed light on the factors that can
explain the different behavior of the innocent, despite the limited
scope of the studies dealing with this issue directly.
A. Evaluating the probability of conviction
The shadow model acknowledges the fact that litigating
parties may not reach a compromise because of differences in their
assessments of the trial’s outcome. Therefore, when the defendant
evaluates the prospects of an acquittal to be higher than the
prosecution’s evaluation, negotiations may fail. In order to minimize
the number of such failures, the prosecution that depends on plea
bargain increases the proposed "discount" in the charges, and by
doing so ensures that the vast majority of defendants will accept the
plea bargain offered. Nevertheless, it may be that the few defendants
that still refuse to accept plea bargains are those defendants who
value their chances at trial to be higher than the prosecution would
think. If innocent defendants are over-represented in this group, then
this could explain their reluctance to plead guilty.
Indeed, the shadow model also shows the possibility that
evaluation discrepancies between the prosecution and the defendants
are larger when it comes to innocent defendants. As explained above,
a defendant's innocence may affect the chances of an acquittal even
if the defendant do not possess evidence which he or she can show
the prosecutors to support the contention of innocence.47 In such
cases, innocent defendants will tend to reject plea bargains that guilty
defendants in a similar situation will accept and their decision will be
based on the information they hold exclusively but unable to credibly
transfer to the prosecution.
However, the shadow model only provides a partial picture of
these evaluation discrepancies. In addition to private and incomplete
information held by one of the parties exclusively, there are other
psychological factors that contribute to the over-optimism of
innocent defendants in comparison to guilty defendants who are
47
If such evidence is available it can be presented to the prosecutor. This way, the
evidence will have a direct affect on both sides’ evaluation of the outcome of the
trial, and will not create assessments discrepancies. See text to note 32 supra.
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facing similar evidence. Experiments that examined this issue show
that the innocent tend to believe they can convince the court that they
are innocent even in the absence of an objective basis for their claim.
For example, in one of these studies, subjects were asked to imagine
that they are accused of armed robbery. They received information
about the event and listened to a recording of their defense lawyer
describing the evidence against them. Even though all subjects
received identical information and heard the same things from the
defense attorney, when asked to evaluate their attorney’s belief in
their innocence, innocent subjects’ evaluation was significantly
higher. Evaluation of the probability of an acquittal was also higher
among the innocent.48 Similarly, in another study in which subjects
were told that there were three witnesses to the crime, innocent
subjects assessed their chances of conviction to be lower.49
As previously mentioned, the two studies reviewed earlier
used an experimental methodology. However, if a casual statement
made to the subjects affected their estimation of their lawyers trust in
them or their ability to convince the jurors of their innocence, than
true guilt or innocence in real cases would probably have a much
larger effect on such assessments.50
The Systematic difference in the evaluation of the probability
of conviction between the innocent and the guilty is consistent with
the "illusion of transparency”; i.e. the exaggerated belief of people in
the ability of others to distinguish between truth and lies.51 If
defendants believe that the court or the attorney can easily find out if
they are lying or telling the truth, they will adjust their assessment of
the trial’s outcome to their guilt even though the objective evidence
they are facing did not change.
48
Mowen & Linder, supra note 10, p.1522.
See Bordens, supra note 10.
50
Indeed, studies in the field of civil litigation and compromise show that
determining the role of participants in the experiment, as prosecutors or
defendants, is enough to create a bias in the direction of the way they value the
same body of evidence. This bias leads to a consistent discrepancy between the
parties’ expectations of the trial’s outcome and the diminution of the chances to a
compromise in a negotiation. Similar findings were also reported in field studies of
civil negotiations, e.g.: Linda Babcock & George Loewenstein, Explaining
Bargaining Impasse: The Role of Self-Serving Biases, 11 Journal of Economic
Perspective 109 (1997).
51
Thomas Gilovich, Kenneth Savitsky & Victoria H. Medvec, The illusion of
transparency: Biased assessments of others Ability to read our emotional states, 75
Journal Personality & Social Psychology, 332 (1998).
49
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The common belief that the world is fair52 may also
contribute to judgmental bias related to private information held by
defendants. Thus, the guilty may greatly fear that more evidence may
be found to ensure their conviction, while the innocent may believe
their lawyers will gather information or witnesses that will prove
their innocence. These differences in individuals’ assessments may
lead defendants to believe in popular illusions, such as the belief in
the judge's ability to expose lies or, alternatively, encourage the
innocent into mistakenly thinking that their refusal to plea bargain
will serve as evidence of their innocence.53
Moreover, the guilty may overestimate their chances of
conviction because of the availability bias.54 This bias leads decision
makers to estimate the probability of events based on the ease in
which the events are constructed in their mind and are accessible to
them. Thus, events that are easier to be remembered or imagined are
perceived as having higher probability of occurring. In most cases,
common events, for example, are better recalled and their occurrence
is easier to imagine. Therefore, the availability is an effective
heuristic. However, there are factors that affect memory or the ability
to imagine events without changing the probability of their
occurrence, thus causing expected errors in probabilistic judgment55.
When offered a plea bargain the defendant has to predict the
judge’s expected assumption regarding his guilt or innocence in
order to decide whether the plea bargain is attractive or not. Guilty
defendants are likely to better remember evidence indicating their
guilt and will find it easier to imagine how this information, in the
52
The source of the theory is in the righting of lerner. See for example: Melvin J.
Lerner, The belief in a just world: A fundamental delusion (1980). For a thorough
review of the experimental research about the phenomenon, its scope and
limitations see: Carolyn L. Hafer & Laurent Bègue, Experimental Research on
Just-World Theory: Problems, Developments, and Future Challenges, 131
Psychcological Bulletin 128 (2005).
53
See Mowen & Linder, supra note 10.
54
See Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging
Frequency and Probability, 4 COGNITIVE PSYCHOLOGY 207 (1973). An event can
influence the subjects estimation of its likelihood even if its availability is only the
result of a request to the subjects to imagine its occurrence. See John S. Carroll,
The Effect of Imagining an Event on Expectations for the Event: an Interpretation
in Terms of the Availability Heuristic, 14 JOURNAL OF EXPERIMENTAL SOCIAL
PSYCHOLOGY 88 (1978) (finding that subjects who requested to imagine events
evaluated the probability of the events as higher than did other subjects.
55
For more samples from experiments and further implications, see Tversky &
Kahneman, Ibid, Tor, supra note 34, p. 248-249.
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hands of the judge sitting on the bench, would lead to their
conviction. On the other hand, innocent defendants are expected to
show the opposite tendency and assess the likelihood of their
conviction to be lower.
Therefore, it seems there is a string of psychological factors
causing innocents’ tendency to overestimate their chances of
acquittal - a tendency that leads them to reject plea bargain offers
that guilty defendants would accept in similar circumstances.
B. Fairness-related preferences
Conviction of the innocent is perceived as an unjust or unfair
outcome.56 Studies show that people are deterred by consequences
they perceive as unfair to them in general,57 particularly in
negotiations,58 and are even willing to pay a significant price for their
decisions.59 Studies of plea bargains also show that even when the
probability of acquittal is similar for innocent and guilty defendants,
innocent defendants will tend to reject plea bargain offers that the
guilty will tend to accept.60 Similarly, as noted earlier, studies which
56
Thus, for example, it is common to refer to the conviction of the innocent as
unfair or immoral, see Ronald Dworkin, Principles, Policy, Procedure, in A
MATTER OF PRINCIPLE 72 (1985); HERBERT L. PACKER, THE LIMITS OF CRIMINAL
SANCTION 250 (1968).
57
See: Max H. Bazerman, George F. Loewenstein & Sally B. White, Reversals of
Preference in .Allocation Decisions: Judging an Alternative Versus Choosing
Among Alternative, 37 Administrative Science Quarterly 220 (1992); Daniel
Kahneman, Jack L. Kentsch & Richard Thaler, Fairness as a constraint on profit
seeking: Entitlements in the market, 126 Am. Econ. Rev. 728 (1986)
58
Colin F. Camerer, Behavioral Game theory: Experiments in Strategic Interaction
(2004); Alvin E. Roth, Bargaining Experiments, in The handbook of Experimental
Economics (John H. Kagel & Alvin E. Roth eds., 1995) .
59
See: Camerer, Behavioral game theory; Roth, Bargaining experiments (the
willingness to suffer a loss in the ultimatum game, even when it comes to large
amounts); George F. Loewenstein, Leigh Thompson & Max H. Bazerman, Social
Utility and Decision Making in Interpersonal Context, 57 J. Personality & Soc.
Psychology, 426 (1989).
60
However, it is important to note that one of the experiments that were conducted
in this study indicated the narrowness of the distinct gap between innocent and
guilty when the probability of conviction is extremely high. A similar finding was
also shown in Bordens, supra note 10, p.67. This finding suggests that the innocent
perceive conviction in itself as a relatively heavy penalty they wish to avoid even
at the great risk of a formal severe punishment. On the other hand, guilty
defendants are not willing to face a similar risk in order to avoid conviction. When
the probability that opting for a trial would lead to an acquittal is significantly
reduced, the guilt and innocence play a smaller role in defendants' decision. For a
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examine the reasons given by real defendants for pleading either
guilty or not guilty, show that actual guilt or innocence is perceived
as a relevant consideration, in contrast to the shadow of trial theory.61
As shown above, the vast majority of defendants who plead not
guilty reason their decision simply by arguing that they are not
guilty, because they believe the act done does not constitute a crime,
because they have a legal justification or exemption, or because of
other reasons. Only a small number of the guilty pleaders rationalize
their decision on some king of cost benefit analysis.62 Moreover, one
study found that about 26% of those who pled not guilty and were
convicted and 21% of those who pled not guilty and were acquitted
told their interviewers that at the time they made their decision they
estimated that they would be convicted. It is clear that at least for the
latter group, the defendants that were acquitted to their own surprise,
this assessment do not reflect hindsight or the impact of cognitive
dissonance due to the drastic tension between denying guilt and
conviction.63 All of the above support the conclusion that defendants
do not only consider the direct costs and benefits of their plea; actual
guilt and innocence are an important factor in their decisions too.
The fact that only a very small number of respondents base
their decision to plead not guilty on considerations of profitability is
consistent with the conclusion that fairness does influence guilty
defendants to accept plea bargains and innocent defendants to reject
them.
These findings are also supported by a string of anecdotes on
defendants who rejected offers of immediate release from prison in
exchange for guilty plea. These defendants were willing to pay the
high price of many years of imprisonment for their innocence. Such
is the story of Kelly Jarrett, who was convicted at a young age of
discussion of this phenomenon, its implications and the limitations of the existing
findings See Tor, Gazal-Ayal & Garcia, supra note 5, part II C.2.
61
See: Bottoms & McClean, supra note 43, p. 111. as noted above, their study
show that the common answer given to the question “why did you plead guilty?”
was “because I am guilty”, while only a few answered that the benefits for a guilty
plea had a substantial effect on their decision.
62
Ibid, p 130-131.
63
The Cognitive dissonance theory holds that tension between the two factors that
are psychologically important is a driving force that motivates people to change
their beliefs or their assessments in ways that reduce this tension. See for example
the extended review of the theory in: Cognitive Dissonance: Progress on a Pivotal
Theory in Social Psychology (Eddie Harmon-Jones & Judson Mills ed.,1999)
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murder she apparently did not commit, and was sentenced to 25
years to life imprisonment. Jarrett turned down several offers
including an offer to plead guilty in exchange for a time-served
sentence that would result in her immediate release. Jarrett explained
she could not live with herself if she pled guilty to a terrible crime
she had not committed. She believed she would be vindicated by the
court of appeals.
Similarly, Kerry Max Cook was twice convicted and
sentenced to death for the murder and mutilation of a woman. After
one mistrial, Cook was convicted and sentenced to death a second
time. When the U.S. Supreme Court ordered the court of criminal
appeals to review the case, the prosecutor offered Cook the chance to
plead guilty in exchange for his immediate release. Despite the risk
of another possible death sentence, Cook refused to plead guilty to a
murder he did not commit. It was only after he had been offered a
Nolo contendere settlement – that allowed him to maintain his
assertion of innocence – did he agree to the deal that set him free.
Two months later, a DNA testing proved that someone else
committed the crime and that Cook was innocent64. In summary, the
combined data reinforces the conclusion that innocents’ belief that
their conviction is unfair affects their willingness to accept a plea
bargain.
V. NORMATIVE IMPLICATIONS
As mentioned above, we showed that defendants’ innocence
has a bearing on their willingness to plead guilty in exchange for
leniency, and that this phenomenon has rarely been addressed in the
innocence problem debate. However, if the innocent do tend to reject
plea bargains, then both sides of the debate should reconsider their
position. Critics of plea bargains ,who argue that the widespread use
of plea bargains encourages the innocent to plead guilty, should
conclude that their concern is not as significant as the shadow model
predicts. On the other hand, the claim of those supporting plea
bargains, whereby a plea bargain is some sort of an insurance policy
for the innocent defendant who does not want to risk a trial, should
now be reviewed given that this insurance mainly benefit the guilty
defendants, not the innocent ones. In this section we shall discuss the
64
For the full stories, see: Confronting the Plea: Four Stories, FRONTLINE,
Available at : http://www.pbs.org/wgbh/pages/frontline/shows/plea/.
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consequences of the innocence effect, and present initial ideas for
remedies.
A. Miminizng false convictions
Opponents of plea bargaining often refer to the innocence
problem and argue that plea bargaining is wrong because it put
pressure on innocent defendants to plead guilty and thus lead to
wrongful convictions. Even if these defendants are better off
pleading guilty, because they want to overcome the risk of trial,
society has a moral obligation to prevent them from doing so, and to
minimize the risk of false convictions.65 It is better that ten – or a
hundred or a thousand – guilty persons escape conviction than that
one innocent does not.66 Plea bargains lead to the conviction of
innocent defendants some of whom would have been acquitted in
court, thus violating this moral principle.67 By this view, there are
several reasons why society must not consciously embrace a
procedure that result in a guilty plea of so many innocent defendants,
even if it is a direct result of the defendant’s voluntary choice. First,
conviction of the innocent does not solely harm the defendant; it also
has broad and negative implications to the society.68 Second,
convicting the innocent is morally wrong, regardless of the direct
cost it impose on the innocent and the society at large.69 That is to
say, leaving defendants with no choice but to go to trial and face the
risk of a heavier penalty may burden them, but this burden is not
moral equivalent to assuring a wrongful conviction through guilty
65
In Regard to the importance of the duty to prevent false convictions see:
Zuckerman, p.125: “The Protection of the Innocent from conviction is a central
theme of the law of criminal evidence… The importance of protecting the innocent
from conviction is not justified only on the basis that it will produce the best social
results”) ;also see :In re Winship, 397 U.S. 358, 364 (1970) (“It is critical that the
moral force of the criminal law not be diluted by a standard of proof that leaves
people in doubt whether innocent men are being condemned”)
66
See Blackstone’s famous saying: “Better that ten guilty persons escape, than that
one innocent suffer” in: William Blackstone, Commentaries on the Laws of
England 352 (1765-1769). The ratio of 1:10 is not acceptable to all. Along the
human history, many scholars offered different ratios to better reflect the balance
between the interest to convict the guilty and the need to insure the acquittal of the
innocent. To review the different opinions see: Alexander Volokh, Guilty Men, 146
U. Pa. L. Rev. 173 (1997).
67
See: Alschuler, The Prosecutor’s Role, p.60
68
See Schulhofer, pp. 1985-1986
69
See Dworkin, supra note 56
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plea.70 For these reasons, it is argued that the advantage of plea
bargaining – ensuring that the innocent will receive penalty relief does not exceed the disadvantage associated with plea bargain –
increasing the number of innocent defendants who are convicted.
Subscribers to this view place a much higher moral value to the
reduction in the rate of wrongful conviction than to the interest in
reducing the sentences to those wrongfully convicted. It is morally
preferable that a single innocent defendant will be convicted instead
of ten innocent, even if the punishment inflicted on that single
defendant will be more than ten times higher than that which would
apply to the ten.71 Moreover: even if an imperfect trial might end in a
wrongful conviction, it is important from a social perspective, that
this result, though unjust, would follow a genuine attempt to get to
the truth.72
However, if, as we show above, innocent defendants are
uniquely averse to pleading guilty, then this moral concern is
exaggerated. Prosecutors adjust their plea offers, based on the
evidence and the expected trial sentence, to the average, and thus
guilty, defendant. Thus most of the guilty defendants will accept the
offers while the innocence effect will lead many innocent defendants
to reject them. The end result therefore is that the vast majority of
innocent defendants would opt for trial and that plea bargains will
mainly lead to the conviction of the guilty ones.
Moreover, in a system that relies on plea bargains, the rate of
wrongful convictions is lower than in a system in which every
defendant go through a full-fledged trial, for two reasons.
First, most plea bargains ensure that the majority of the guilty
defendants plead guilty and therefore are surely convicted, while
many innocent at least gain the prospect of an acquittal in a trial. If it
were not for plea bargaining some of the guilty defendants that plead
guilty would have been acquitted in trial, and so the rate of the
innocent among the convicted would have been higher.73
70
See: Schulhofer, p. 1986
See: Alschuler, The Changing Plea Bargaining Debate, p. 715
72
There, p. 686
73
It is important to stress that the principle of false convictions prevention puts the
emphasis on the rate of false convictions and not on their absolute numbers. As
implied in the statement made by Blackstone, the emphasis is put on the
relationship between the interest in the conviction of guilty and the interest of
acquitting the innocent, and not on the measurement of the last interest in an
71
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Second, plea bargains made with most defendants save
recourses which are then used in the trials of the few defendants that
contest the charges, allowing these trials to be more accurate and
more protective to the innocent. If every criminal proceeding would
lead to a full trial, resource constraints would force the system to
lower the costs of trials in order to maintain a reasonable level of
enforcement. In fact, historical studies show that plea bargains have
evolved largely due to the construction of defenses’ privileges and
rights such as the privilege against self incrimination and the right to
representation.74 Even today one can see a distinct connection
between expanding the protections granted to defendants and the
developing want for plea bargaining in different countries.75 Plea
bargains leave the vast majority of defendants out of court and allow
the judiciary to ensure a complex and costly trial to those who
choose a trial, including most of the innocent defendants. If every
case went to trial, the trial process would have to be significantly
simplified, and thus less accurate, leading to an increase in the rate of
wrongful conviction.76
The critics of plea bargaining, who emphasize its
consequences on innocent defendants, should be encouraged. In fact,
they should support plea bargaining. Because of the innocence effect,
plea bargaining actually reduce the rate of wrongful conviction. To
the extent that the rate of wrongful conviction is the yardstick for the
quality of the system, plea bargaining improve the criminal justice
system.
absolute manner. Obviously in larger jurisdictions (i.e. in jurisdictions that
prosecute more defendants than others) there will be a higher absolute number of
mistakes, but this does not prove that a legal system such as that provides less
protection to the innocent than a smaller legal system. It is the rate – not the
number – of wrongful convictions that matters.
74
See: John H. Langbein, Understanding the Short History of Plea Bargaining, 13
Law & Soc’y Rev. 261 (1979)
75
Thus, in Italy, the transition from the inquisitorial method to the adversarial
method that gave the defendant several new legal rights at trial was accompanied
by infiltration of plea bargains as a central component in the judicial system. See
William T. Pizzi & Mariangela Montagna, The Battle to Establish an Adversarial
Trial System in Italy, 25 Mich. J. Int’l L. 429 (2004). In Germany, the increasing
complexity of trials was a significant catalyst in the development of plea bargains.
See Máximo Langer, From Legal Transplants to Legal Translations: the
Globalization of Plea-Bargaining and the Americanization Thesis in Criminal
Procedure, 45 Harv. Int’l L.J. 1, 45 (2004).
76
See: Scott & Stuntz, Plea Bargaining as Contract, p. 1932
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B. “Insuring” the innocent
Unlike the critics of plea bargains, proponents of plea
bargaining tend to emphasize the interest of the innocent to minimize
their damages.77 Plea bargains provide the innocent with an
alternative to the costly and risky trial. These defendants may,
therefore, prefer a plea bargain rather than an expensive procedure
during which they may be detained or suffer other restrictions, and
ultimately may face a harsh penalty. For those defendants, plea
bargains are therefore a type of insurance that, in the eyes of many
plea bargaining proponents, should not be revoked in the name of
protecting innocent defendants.
Disregarding the innocence effect, plea bargaining supporters
emphasize the interests of innocent defendants in insurance. But if
the innocence effect is taken into account, they too should reconsider
their position. If innocent defendants are reluctant to plead guilty,
then the main beneficiaries from the insurance are actually the guilty
ones. The end result is that innocent defendants have a higher
average sentence than that of the guilty defendants who are facing
similar evidence and are charged with a similar offense.
This phenomenon can be explained with this next example:
Suppose that in all cases in which the chances of conviction are 80%
and the predicted sentence is ten years imprisonment, the prosecution
offers defendants a plea bargain resulting in a sentence of five years
in prison (which reflects "a discount" of three years in prison in
comparison to the expected trial sentence). Suppose that due to the
innocence effect, innocence defendants reject that offers and the only
guilty ones accept it. Each of the guilty defendants will be sentenced
for exactly five years. 80% of the innocent defendants will be
convicted at trial and sentenced to ten years in prison, but since 20%
of them will be acquitted, the average sentence imposed on an
innocent defendant is eight years in prison. In other words, innocent
defendants are sentenced, on average, to longer sentences. However,
in a legal system without the mechanism of plea bargains, the
77
See: Scott & Stuntz, Imperfect Bargains, p.2013 (explaining the controversy
between them and Schulhofer saying “He attacks our analysis because we want
innocent defendants to be able to plead, if they so choose, under the best possible
terms. In Schulhofer’s view, they are better off going to trial, whether they think so
or not”). Also see: Church, pp. 515-516 (critiquing pr. Alschuler’s objection to
plea bargains with innocent); Bowers (claiming that plea bargains are especially
beneficial to innocent defendants).
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average sentence that would have been imposed on the innocent and
the guilty under the circumstances in the example above would be
identical.78
Moreover, it is likely that the example above also diminishes
the severity of the problem. In order to ensure that 80% to 90% of
the defendants agree to a plea bargain, the prosecution must offer
discounts of more than 50% to defendants who have a 20% chance of
acquittal.79 Perhaps an even more harmful effect occurs in cases
where the plea bargain reached changes the type of sentence – from
imprisonment sentence to intermediate sanction or probation.80 In
these cases, the gap between the punishment imposed on those who
78
Of course one should assume that only few innocent will face 80% prospects of
a conviction, seeing that, on average, cases against innocent are likely to be
weaker; we will get similar results if we separately analyze each group of cases in
which the penalty after a trial and the chances of conviction are similar. The end
result is that in all the groups of defendants, the average penalty of the innocent
would be higher than that of the guilty in a legal system that relies on plea
bargains.
79
If all of the defendants would try to minimize only their punishment expectancy,
the prosecution could settle for a sentence discount of slightly more then 20% thus
ensuring that all defendants with 20% prospects of an acquittal would accept the
offer. In practice, defendants are "averse to losses" and are willing to risk a higher
expected sentence in order to preserve the chance of a full acquittal. See Oren
Gazal-Ayal, Partial Ban on Plea Bargaining, 27 Cardozo L. Rev. 2295, 2338-2339
(2006). As a result, the prosecution must offer them a larger sentence discount.
Also, defendants differ one from the other in their willingness to accept plea
bargains, in light of idiosyncratic differences in their success rate assessments and
their preferences regarding risk. In a system with budgetary constraints that allows
the prosecution to bring to trial only 10% of the cases, the prosecution can not
settle for proposals that fit the average defendant and therefore be accepted by
about half of the defendants. Instead, the prosecution has to bid offers that the vast
majority of defendants will accept. As a result, the prosecution is required to offer
much more lenient sentences than the punishment expectancy at trial. In fact, many
times the impact a plea bargain has on cases where the chances of an acquittal are
high, is the end result of a complete waiver on actual jail sentence as expected after
a judicial conviction, and its’ replacement with community service or probation.
80
For example, see the Tolya case brought in the last chapter, where all the
defendants who were convicted in a standard procedure were sentenced to prison
terms, while most of those who admitted guilt were sentenced to other penalties.
Such arrangements are well known in Israel also. it is, of course, difficult to know
in case of a plea bargain which penalty would have been imposed without the
arrangement. For this reason it is difficult to empirically establish the claim that
arrangements that converters prison term sentences to other punishments are
common. However, there have been rare cases in which data showing the range of
punishment after the trial and the punishment offered in the arrangement itself was
revealed.
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plead guilty (most of whom are guilty) and the average penalty
imposed on those who plead not guilty (a group that suffers from
over-representation of the innocent) is especially large, and
accordingly the effect of plea bargains on innocent defendants is
larger.
One can of course argue that the innocent do not lose from
plea bargains even if these arrangements are more profitable to the
guilty. It can be argued that if the plea bargains would be canceled,
then all defendants would lose, even if the guilty defendants, that are
often the main beneficiaries of plea bargains, have more to lose. This
argument ignores the effect plea bargains have on the general level
of punishment. In legal systems where most of the defendants are
convicted through plea bargains, the sentence imposed on these
defendants is the standard sentence.81 To ensure congruence between
the sentence and the gravity of the offense, the legislature, the
prosecutors, and the judges have an interest to inflict harsher
sentences on those who do not plead guilty.82 As a result, the
sentences imposed on the few who choose to go to trial are heavier
than those that would have been imposed if all defendants would
have been sentenced after a full-fledged trial.83 Moreover, the
overcrowded prison system could not accommodate so many new
inmates with longer sentences and the economic pressure of the
system probably lead to measures to reduce the number of inmates,
and thus, shorten the actual sentences. Therefore, given the impact of
innocence on the willingness to plea bargain, it may be that the
innocent have an interest that plea bargaining is banned.
C. Restrictions on plea bargains
The conclusion of this section is that the arguments of both
sides plea bargaining controversy are weakened when the innocence
effect is taken into account. As a result of the innocence effect, plea
bargains probably do not increase the rate of wrongful convictions,
as argued by some of the plea bargaining opponents, but also do not
promote the interests of innocent defendants as argued by the plea
bargaining supporters. However, perhaps an in between solution –
between the complete freedom to make plea bargains, as is the case
81
See: Gerard E. Lynch, Our Administrative System of Criminal Justice, 66
Fordham L. Rev. 2117, 2134 (1998)
82
For analysis of the interests of legislators and prosecutors, see: William J.
Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001)
83
See: Alschuler, The Changing Plea Bargaining Debate, p. 689
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today, and a complete ban on plea bargaining - can advance both
goals at the same time.
One way to reduce the negative effect of plea bargaining on
the sentences of wrongfully convicted defendants is to limit size of
the plea discount. The law can instruct judges not to approve a plea
bargain if the post plea sentence is significantly lower than the
sentence expected after a jury trial conviction. If the prosecution’s
ability to offer significant sentence discount in plea bargaining would
be limited, defendants requiring considerable discount in exchange
for their guilty plea would not bargain. Since the innocent demand,
on average, significantly lighter sentences than guilty defendants, the
proportion of innocent defendants among those who plead guilty will
be smaller.
A similar proposal was offered by one of us84 in order to
discourage the prosecution from filing charges in weak cases, by
limiting its ability to reach a plea bargain in those cases. The
suggestion here emphasize a different end-result: by restricting the
guilty plea discounts the law can reduce the number of innocent
defendants who plead guilty, and their proportion among all guilty
pleaders. Such a restriction would still allow the prosecution to reach
plea bargains with most of the guilty defendants. Conversely, as a
general rule, the restriction on the sentence discount will usually
prevent plea bargains with innocence defendants who require a larger
discount because of the innocence effect. Therefore, such a
restriction can reduce the risk that innocent defendants would plead
guilty, as some probably do today in exchange for very lenient
sentences. The fewer innocent defendants pleading guilty will lead to
fewer wrongful convictions.
Reducing the rate of wrongful conviction is the main
normative goal of one side of the debate. But a restricting on the
guilty plea discount can also help reducing the sentences imposed on
innocent defendants, which is the main concern of others. Restriction
of the guilty plea discount will minimize the gap between the
sentence imposed on those who opt for a trial, including relatively
many innocent, and that of those who plead guilty, most of whom are
guilty. The innocent defendants who will be convicted in jury trial
will still be sentenced for longer terms than the guilty pleaders, yet,
the difference will be smaller.
84
See: Gazal-Ayal, supra note 79
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How can one impose limits on the practice of plea
bargaining? When it comes to sentence bargains, it is not a
particularly difficult task. Courts can be instructed to reject plea
bargains if the proposed sentence is substantially lower than that
imposed in similar circumstances after a trial. Limiting charge
bargaining is much harder, but it might still be a possible task.85
D. Agreements on a Simplified Criminal Process
Another alternative to plea bargaining can be bargaining for a
simplified criminal process. The law can encourage parties to replace
plea bargains with agreement on shorter and simplified process in
return for a sentence discount. Parties can agree on a bench trial
instead of a jury trial,86 agree that the defendants will be the first to
testify, before the case for the prosecution is presented, or make
other stipulations which allow a cheaper trial for the prosecution.
True, in such a simplified process, the risk of mistake might be
larger. Yet, innocence defendants in such process can gain a discount
for the agreement without pleading guilty – something which they
are reluctant to do. Moreover, defendants in such simplified
proceedings will maintain the right to contest the case, and, if
successful, gain an acquitted, a right they waive in regular plea
bargaining. Innocent defendants who may be reluctant to plead
guilty, would often prefer a simplifies process in which they are not
required to plead guilty, are able to avoid the damaging
consequences of prolonged litigation and benefit a lenient sentence
in exchange for saving judicial time.
True, the defendant in such a simplified trial might have a
smaller chance of acquittal. As a result, it is possible that defendants
who would have been acquitted in a full trial may be convicted in a
simplified trial. Nevertheless, it can be said in confidence that the
advantages of the simplified procedure outweigh its disadvantages.
First, the proposed procedure will promote the interest of the
innocent defendants by allowing them to benefit from a real legal
process which is aimed at finding the truth while benefiting from a
sentence discount. Indeed, the cost of this procedure is higher than
that of a guilty plea, but the gap between the two is not so big when
it comes to substantially simplified process. Additionally, most of the
85
Gazal-Ayal, supra note 79, 2340.
See Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV.
1037.
86
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guilty defendants who plead guilty today will continue to do so even
when offered a simplified process is an option because in order to be
acquitted in such a procedure, they would have to lie to the judge. In
most cases that involve conclusive evidence, defendants will find it
psychologically difficult to lie to a judge; mostly due to the fact that
it probably will not help their case. As shown above, guilty
defendants tend to plead guilty simply because they are guilty.87
Therefore most of those who plead guilty will continue to do so even
when they can get a similar discount in a simplified process.
Furthermore, some of the defendants, who in the absence of an
alternative procedure would choose a full trial, would now choose
the simplified procedure. As a result, judicial resources will be
spared and could be channeled towards the implementation of the
simplified process. In light of this, the simplified procedure could
advance the interests of the innocent without the need for additional
resources.
Second, the procedure may also reduce wrongful convictions.
Despite the reluctance of innocent defendants to plead guilty, some
of them succumb to the desire to quickly end the proceedings or to
the fear of a wrongful jury trial conviction, and thus plead guilty. The
simplified procedure could provide these defendants an opportunity
to challenge the charges against them. In light of all of this, we
believe that the benefits of the proposed procedure, in view of
innocent’s reluctance to plead guilty, outweigh its disadvantages.
Moreover, even in cases where a person might be mistakenly
convicted in a simplified process, the moral gravity of such
conviction will be smaller because it will be reached after an honest
judicial attempt to find the truth. Studies on procedural fairness even
indicate that defendants who are not satisfied with the outcome of the
trial tend to accept it if they were given an opportunity to argue their
case before an impartial arbiter before the verdict. Simplified
procedure might be better in allowing the defendant a save
opportunity to present his story, than the adversarial jury trial.88
87
Reference
During a Full trial the defendant may respond only when presenting the defense
case after the prosecution rests. The defendant’s response is subjected to the rules
of the direct examination and cross examination, and the defendant can not speak
directly to the judge. In some cases, following the advice of the defense attorney,
the defendant chooses to rest and not exercise his or her right to testify. Once the
defendant’s testimony ended, he or she will not be given another chance to speak
before the verdict. In general, the criminal law encourages defendants not to tell
88
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CONCLUSION
In this study we showed that the assumption in the plea
bargaining literature, according to which a defendant's innocence has
no direct bearing on the defendant’s decision whether to accept a
plea bargain, is incorrect. Even when there are no differences in the
likelihood of conviction and in the expected penalty at court in the
framework of a plea bargain, innocent defendants are more likely to
reject plea offers that guilty defendants would accept.
Empirical research on the contributing factors to guilty pleas
is still in its early stages, and the research concerning the effect of
innocence on the willingness to accept plea bargains also has a long
way ahead of it. In this respect, it is necessary to examine whether
the type of the defendant’s innocence has an effect on his or her
reluctance to enter a guilty plea; it is possible that defendants
charged with a crime they did not commit react differently than
defendants whose innocence stems from the absence of the required
mental component or from the present existence of a legal defense to
the charges. Another aspect that should be examined is whether the
type of evidence gathered against the defendants has an effect on
their willingness to plead guilty. In this context it should be noted
that there are indications that defendants who falsely confessed to the
police will also demonstrate greater tendency to plead guilty in court
compared to defendants facing eye witness identification evidence or
other evidence. Similarly, there is room for additional research to
examine whether the effect of innocence depends on the strength of
the evidence that the defendant is facing, given that there is initial
evidence indicating that the gap between the willingness to plea
bargain among the innocent and the guilty is reduced when the
chances for conviction are high.89 Furthermore, one should examine
whether the factors which affect the willingness to plead guilty -
their story and actually choose to remain silent. See: Alexandra Natapoff,
Speechless: The Silencing of Criminal Defendants, 80 N.Y.U.L. Rev. 1449 (2005)
(describing and critiquing the incentives provided by the criminal justice system
enabling the silencing of defendants).
89
One experimental study showed that the willingness to accept plea bargains,
among the guilty, does not change when the chances for conviction rise from 50%
to 90%, whereas among the innocent the difference is much more significant; see:
Bordens, supra note 10, p. 67 . In a different study it was established that when the
chances for conviction are extremely high, the difference in the willingness to
accept a plea bargain, between the innocent and the guilty, vanishes; see: Tor,
Gazal-Ayal & Garcia, supra note 5, part II.C.2.
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such as the time spent in pretrial detention90 or the pressure exerted
by the defense attorney upon the defendant91 differently affect the
guilty and the innocent. Hopefully, in the future, more studies will be
conducted in this field in order to examine the degree of reluctance to
plead guilty among innocent defendants as well as the factors that
affect the decision whether to accept a plea bargain. The information
and findings of such studies would equip the criminal justice system
with tools to improve its ability to cope with the innocence problem.
However, it is already clear that the extent to which the legal
literature relies on the shadow model is excessive. The existing
research is enough to show that the innocence of a defendant, as
such, affects his or her willingness to accept a plea bargain - beyond
the influence of the chances of conviction and the punishment in
store for them if convicted at trial. Hence, apart from its direct
implications, the research on the impact of innocence illustrates the
need to further develop the available empirical database in order to
examine the behavior of parties engaged in a plea bargaining
process, which is currently the leading process responsible to the vast
majority of criminal convictions.
90
Series of studies have shown that detention affects the willingness of defendants
to plead guilty. See, for example: William M. Landes Legality and Reality: Some
Evidence on Criminal Procedure, 3 J. Legal Stud. 287 (1974); Gail Kellough &
Scot Wortley, Remand for Plea: Bail Decisions and Plea-bargaining as
Commensurate Decisions, 42 Brit. J. Criminology 186 (2002). When the defendant
is in detention, he or she has greater incentives to quickly end the proceedings. In a
field study that examined inconsistent admissions among women prisoners, it was
shown that the desire to end the pre-trial detention was classified as one of the
main reasons for accepting a plea bargain, see: Suzanne Dell, Silent in Court: The
Legal Representation of Women who Went to Prison 31-32 (1971). Even without
being arrested, many defendants would be willing to admit in the framework of a
plea bargain in order to save themselves the ongoing legal proceedings; see:
Malcolm M. Feeley, The Process is the Punishment: Handling Cases in a Lower
Criminal Court (1992).
91
For a review of the different ways attorneys influence defendants’ decisions and
actions, see: Alschuler, The Defense Attorney’s Role. an extensive field study of
this issue showed that a substantial number of defendants that refused to admit
guilt changed their minds at the last minute following their attorney’s advice; see:
John Baldwin & Michael McConville, Negotiated Justice: Pressures To Plead
Guilty (1977).