Factual guilt, perceived guilt, and race: How defense attorneys make plea recommendations in real-world circumstances

Cuny John Jay College Of Criminal Justice, New York NY

Investigators

Abstract

The vast majority of criminal cases in America today – upwards of 95% – are resolved through plea bargaining, a negotiation resulting in an agreed-upon resolution to the case, saving the State and the defendant the time and expense of a lengthy trial. But a growing number of exonerations and an expanding body of literature point to troubling flaws in the informal and swift plea process. Understanding the underlying mechanisms of plea-bargaining decisions, including how race affects plea decisions, is critical if we are to preserve the fundamental rights of defendants and the integrity of our criminal justice system. Examining and identifying the role of defense attorneys – who are realistically at the heart of the plea decisions – and exploring how real-world circumstances affect their plea recommendations will guide the development of sound plea bargaining policies and will support practitioners in their pursuit of justice. A series of four studies will isolate variables that frequently occur in the real world of defense attorneys and plea bargaining, and study attorneys’ predictive accuracy (i.e. how accurately they predict jury verdicts) and plea recommendations. Attorneys will review a hypothetical criminal case file containing various pieces of evidence and will be asked to make plea recommendations based on the case file. Mock jurors will view a corresponding video of a mock trial containing the same evidence as the case file viewed by participating attorneys. However, the contents of the attorney case file will be manipulated to reflect real-world scenarios. The first study will manipulate evidence (pointing to guilt/innocence) and the defendant’s assertion of guilt/innocence, to better understand which carries more weight in the eyes of a defense attorney: evidence or a client’s assertion. The second study will examine how direct indications of guilt or innocence, in conjunction with a defendant’s assertion of guilt or innocence affects plea recommendations and attorneys’ beliefs about guilt status. The third study will address the question of how incomplete access to case files affects plea recommendations. Since plea decisions are often made quickly, with a time limit, this study will aim to understand how defense attorneys decide whether to recommend a plea offer without having seen all the facts of a case. Finally, the fourth study will explore how inadmissible evidence influences attorneys’ plea recommendations. This study will manipulate the presence of inadmissible evidence such as criminal history or hearsay testimony in case files to analyze how attorneys then differentially recommend pleas. Results from these studies will help inform the development of a more nuanced plea-bargaining research model than currently exists and will refine our understanding of how attorneys make plea recommendation when faced with the constraints of the plea process. This award reflects NSF's statutory mission and has been deemed worthy of support through evaluation using the Foundation's intellectual merit and broader impacts review criteria.