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December 1, 2015

"Negotiating Accuracy: DNA in the Age of Plea Bargaining"

The title of this post is the title of this notable new paper authored by Alexandra Natapoff and available via SSRN. Here is the abstract:

Hundreds of exonerations have made DNA a kind of poster child for the innocence movement and the demand for more accurate evidence in criminal cases.  But most wrongful convictions are not simply the result of evidentiary mistakes. In the marketplace of plea bargaining, convictions are the result of numerous inputs — a defendant’s criminal record, prosecutorial bargaining habits, the size of the trial penalty, whether the defendant is out on bail — that have nothing to do with the accuracy of the evidence.  The bargained nature of these convictions means that accurate evidence is just one piece — and not always the most important piece — of the larger negotiation process that establishes guilt.

We might say that the plea process is structurally tolerant of inaccuracy, precisely because it transforms accuracy into a commodity that may be traded and negotiated away in exchange for agreement.  This is a recipe for wrongful conviction.  The innocence movement, for example, has uncovered numerous cases where innocent defendants pled guilty to homicide and rape in order to avoid the death penalty.  The pressures to plead are likewise pervasive in the misdemeanor system, in which thousands of people are rushed through assembly-line processes and routinely plead guilty to minor crimes of which they are demonstrably innocent.  Ultimately, we should recognize plea bargaining as a source of wrongful conviction in its own right, and add it to the canonical list of wrongful conviction sources such as mistaken eyewitness testimony, lying informants, and bad forensics.

December 1, 2015 at 09:36 AM | Permalink


End all judge and prosecutor immunities for deviations from professional standards of due care. To deter.

Posted by: Supremacy Claus | Dec 1, 2015 10:10:07 AM

Getting an innocent person to falsely plead guilty is intentional. It is a tort. It should subject the lawyer and the judge to exemplary damages.

To anyone seeking to shrink government, to shrink the power of these little dictators, tort liability is the royal road. It will have immediate results on the defendant and on all who learn of the damages granted.

Posted by: Supremacy Claus | Dec 1, 2015 10:26:49 AM

Because of the multiple violations of Rules of Conduct, of Evidence, of Criminal Procedure, and their attached duties, and their explicit encoding in statutes, the tort is facial and per se. The sole dispute in a tribunal should be over the amount to be paid out.

Posted by: Supremacy Claus | Dec 1, 2015 10:33:25 AM

We need more defense lawyers who are appointed and do not work for the Public Defender. Less prosecutors. More judges. More judges who tried cases for defendants. Lawsuits over wrongful convictions may curb some of the illegal prosecutorial behavior.

Posted by: Liberty1st | Dec 1, 2015 7:42:21 PM

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