Plea Bargaining

Bargaining in the Shadow of the Trial: Introductory Text Exploring the Reach of Evidence Outside the Jury Box

Burden of Proof: Scales of Justice (Defendant's and Plaintiff's chances of winning based on strength of evidence)The National Institute of Justice

Co-PI: Shawn Bushway
Phase I Graduate Researcher: Robert Norris 
Phase II Graduate Researchers: Robert Norris, Rose Bellandi, and Shi Yan

There is overwhelming consensus that “strength of evidence” (SOE) drives guilty pleas. But, what is “strength of the evidence”? Despite the clear consensus about its import in legal decision-making, it has not been well conceptualized or measured. Theorists contend that pleas occur “in the shadow of a trial,” meaning that plea decision-making is premised on the perceived probable outcome of a trial. However, the decision to plea is not directly analogous to the jury decision because parties to a plea are bargaining simultaneously about conviction and sentence length. We conducted two phases of research in which we replicate and extend a watershed NIJ-funded study from the 1970s (Miller, McDonald, & Cramer, 1978). In Phase I, we manipulated the presence and combination of three evidence forms (eyewitness, confession, and DNA), and the prior criminal history of the defendant in hypothetical case scenarios administered to nationally representative samples of judges, prosecutors, and defense attorneys. Using a sophisticated and user-friendly web-based survey, we assessed the relative importance of evidence, as well as extra-legal factors in the perceived probability of conviction and willingness to plea. In Phase II, we partnered with two county DA offices to code the evidentiary and non-evidentiary factors in actual criminal case files.

Creating and Transferring Knowledge on Guilty Pleas

The National Science Foundation

Phase I GraduateResearcher: Catherine Bonventre
Phase II Graduate Researcher: Reveka Shteynberg

Guilty pleas, which are the near-exclusive means of conviction for juvenile and adult defendants, must be entered knowingly, intelligently, and voluntarily. The primary methods to determine these requirements are through oral plea colloquies and written tender-of-plea forms. Despite their daily, widespread use and importance in safeguarding due process, almost no research has been conducted on these plea materials. The research has three objectives. The first objective is to examine whether defendants across differing states and age groups are presented with similar components of plea materials (i.e., content) and age-appropriate levels of understandability. Equality under the law is paramount; if tender-of-plea forms are incomplete and/or incomprehensible to certain subsets of defendants, these defendants are disadvantaged. To carry out the first objective, state and county-level tender-of-plea forms will be obtained, and subjected to detailed content and comprehensibility analyses. The second objective is to determine, via controlled experimentation, if plea understanding impacts decisions under varying circumstances and individual difference factors. The third objective is to determine if the rationales underlying plea decision, regardless of the decisions themselves, differ by these circumstances and factors. These two objectives will be achieved via one carefully conducted laboratory study. A total of 192 juveniles (aged 13-14, and 16-17) and young adults (18-24) will be invited to participate in a study on legal decision-making. 

Voluntary, Knowing and Intelligent Pleas: Understanding the Plea Inquiry

The John D. and Catherine T. MacArthur Foundation, Network on Community Mandated Treatment, Professor John Monahan

Co-Researcher: Alicia Summers

When defendants plead guilty, they are asked a series of questions (the plea inquiry) in open court to ascertain whether pleas are made knowingly, intelligently, and voluntarily. There is a wealth of research on adjudicative competence, but little to none on the plea inquiry. Whereas competence is relevant to whether one has the ability to make knowing, intelligent, and voluntary decisions, the plea inquiry is relevant to whether one actually made such a decision. In the present study, 99 adult defendants who just plead guilty were interviewed and tested about aspects of the plea process. We found that whereas almost all defendants had little or no adjudicative competence deficits and claimed to have made a knowing plea decision, plea comprehension was generally poor.