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August 13, 2010

"The Role of Evidence in the Value of Plea Bargains"

The title of this post is the title of this notable article on plea bargaining available via SSRN.  Here is the abstract:

It has been well established that a “plea discount” or “trial penalty” exists, such that defendants who plead guilty receive significant sentencing discounts relative to what they would receive if convicted at trial.  Theorists argue that the exact value of this plea discount is determined by bargaining “in the shadow of a trial,” meaning that plea decision-making is premised on the perceived probable outcome of a trial. In trials, the strength of the evidence against defendants greatly impacts the probability of conviction.  In the present study, we estimate the probability of conviction at the individual level for those who pleaded guilty. We find that, contrary to the rational choice model, evidentiary factors either do not impact or negatively impact the probability of conviction, which stands in stark contrast to the impact evidence has at trials.  These preliminary findings suggest that plea bargain decision-making does not occur in the shadow of the trial.

August 13, 2010 at 09:32 AM | Permalink


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Professor Berman-

The link to the article appears to be broken, at least on my computer.

Posted by: Shawn | Aug 13, 2010 11:56:57 AM

"In the present study, we estimate the probability of conviction at the individual level for those who pleaded guilty."

Gee, and all this time I thought that probability was very close to 100%.

In the text of the study, we find that the dependent variable is "the probability of incarceration if convicted at trial for those who pleaded guilty." The abstract needs work.

Posted by: Kent Scheidegger | Aug 13, 2010 1:54:14 PM

Yes - it needs work. The data base used appears to be very old as well. This abstract does not seem to understand the obscurity of charging and it's function in the plea.

Posted by: beth | Aug 13, 2010 2:22:46 PM

"In the text of the study, we find that the dependent variable is 'the probability of incarceration if convicted at trial for those who pleaded guilty.'"

I thought this was pretty clear from the context of the abstract, though I agree the ambiguity is somewhat amusing.

As for the database's "appear[ing] to be very old," as the authors explain at the beginning of the article, "The dataset, albeit somewhat antiquated, is one of the few to contain key information on both the charge at indictment and charge at conviction."

Posted by: Michael Drake | Aug 13, 2010 5:13:36 PM

Thanks for the clarification. It may not be possible to find a data base that could possibly quantify what goes on in the plea bargaining process. Much has changed in the last 20 years.

Posted by: beth | Aug 14, 2010 12:33:01 AM

How about a study that merely records the plea discussion and its final result? You would then learn that neither the prosecution nor the defense knows much about the case, let alone the scope of the evidence. The rush is on to go to the next case, and legal obstacles are mutually dispensed with. The result may not be a splitting of the difference, but an entirely unrelated charge, perhaps, mistakenly taken from another defendant. The clearance rate and avoiding a trial at all cost, is the sole value. Safety, excluding innocents, not priorities. Making no waves, biding one time until one can go do private defense work is an investment in the future for the prosecutor.

Posted by: Supremacy Claus | Aug 15, 2010 11:00:36 AM

how true SC Kind of like our criminal politicians who routenly sign and vote for bills that are 1,000's of pages long and have NO CLUE what they are voting on let alone signing.

Posted by: rodsmith | Aug 15, 2010 3:14:22 PM

Every once in a while, SC nails it. This is one of those times. My strong sense is that pleas are not conducted under the shadow of trial because the attorneys -- especially defense counsel -- typically do not conduct a thorough factual investigation until and unless plea negotiations have failed, and a trial has become a realistic possibility. (The major exception being where there is a really obvious, dispositive suppression issue in the case.)

This is unfortunate, since often the little leverage available to defense counsel will be drawn from his or her ability to show the prosecution that there will be proof/credibility difficulties at trial. Even if the probability of conviction is reduced only to 80 or 85 percent (instead of, say, 95 to 100), DAs do not like to lose cases, and the mere demonstration that you are prepared to put on a zealous defense can make a major difference in the results of plea negotiations. Indeed, in my view, the failure/inability (because of workloads) of defenders to do thorough, early investigation in support of plea negotiations is one of the major factors contributing to the general inadequacy of the indigent defense system.

Posted by: nc lawyer | Aug 16, 2010 12:42:25 PM

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