Search for: All records

As the United States has shifted to “a system of pleas,” the role of defense attorneys has swung from trial litigator to plea negotiator. To further investigate how this shift has impacted defense attorneys, we surveyed a nationwide sample (N = 134) to assess the duration and frequency of client meetings, information clients frequently lack and misconceptions they espouse concerning the plea and trial process, and how attorneys convey advice to accept or reject plea offers to clients. The results indicated that defense attorneys spend a significant amount of time meeting with clients (an average of 5.7 meetings for an average of 44.9 minutes). They also cited substantial deficits in criminal defendants’ knowledge of the legal system, as well as many misconceptions regarding legal procedures. Attorneys provided a diversity of responses regarding the most important advice they offer their clients with many mentioning facts related to the case resolution process (56.0%), the direct and collateral consequences associated with a criminal conviction (29.4%), the role of the defense attorney (32.1%), and the importance of the right to silence (24.8%). Further, over half of the attorneys surveyed indicated a general hesitance (54.0%) and others an outright refusal (15.0%) to provide an explicit plea recommendation to their clients. In sum, these findings provide valuable insight into the challenges faced by defense attorneys who must be adviser, negotiator, and apparently, educator. Further, many appear to draw a sharp line between counseling their clients and moving them to a decision. 

In most U.S. jurisdictions, prosecutors are not required to clearly establish a reasonable basis for guilt prior to offering defendants plea deals. We apply Bayesian analyses, which are uniquely suited to illuminate the impact of prior probability of guilt on the informativeness of a particular outcome (i.e., a guilty plea), to demonstrate the risks of plea offers that precede evidence. Our primary prediction was that lower prior probabilities of guilt would coincide with a significantly higher risk for false guilty pleas. We incorporated data from Wilford, Sutherland into a Bayesian analysis allowing us to model the expected diagnosticity of plea acceptance across the full range of prior probability of guilt. Our analysis indicated that, as predicted, when plea offers are accepted at lower prior probabilities of guilt, the probability that a plea is actually false is significantly higher than when prior probabilities of guilt are higher. In other words, there is a trade-off between prior probability of guilt and information gain. For instance, in our analysis, when prior probability of guilt was 50%, posterior probability of guilt (after a plea) was 77.8%; when prior probability of guilt was 80%, posterior probability of guilt was 93.3%. Our results clearly indicate the importance of ensuring that there is a reasonable basis for guilt before a plea deal is extended. In the absence of shared discovery, no such reasonable basis can be established. Further, these results illustrate the additional insights gained from applying a Bayesian approach to plea-decision contexts.