CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, June 9, 2012

Dervan & Edkins on an Empirical Study of Plea Bargaining's Innocence Problem

Dervan lucianLucian E. Dervan (pictured) and Vanessa Edkins (Southern Illinois University School of Law and Florida Institute of Technology) have posted The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem on SSRN. Here is the abstract:

In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the incentives were enticing and pleaded guilty. 

That Taylor and the college student both pleaded guilty is not the only similarity between the cases. Both were also innocent of the offenses for which they had been accused. After serving nineteen years in prison, Taylor was exonerated after DNA testing proved that neither she nor any of the other five defendants who pleaded guilty in her case were involved in the murder. As for the college student, her innocence is assured by the fact that, unbeknownst to her, she was actually part of an innovative new study into plea bargaining and innocence. The study, conducted by the authors, involving dozens of college students, and taking place over several months, not only recreated the innocent defendant’s dilemma experienced by Taylor, but revealed that plea bargaining’s innocence problem is not isolated to an obscure and rare set of cases.


Strikingly, the authors’ study found that over half of the participants were willing to falsely admit guilt in return for a perceived benefit. This finding not only brings finality to the long-standing debate regarding the possible extent of plea bargaining’s innocence problem, but also ignites a fundamental constitutional question regarding an institution the Supreme Court reluctantly approved of in 1970 in return for an assurance it would not be used to induce innocent defendants to falsely admit guilt.

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In my home State, the consultation that happens between the prosecutor and defence (and in serious offence cases, the victim) focus on the establishing 'agreed' facts that then form the grounds for a 'charge bargain', not a plea bargain. If agreement cannot be reached then a 'dispute of facts' hearing or a trial is held.

Charge bargaining can be problematic, however. For example, in a sexual assault case involving the gang rape of two females, the prosecutor (in another State) and the defendant agreed a ‘statement of fact’ upon which the defendant would plead guilty. The statement did not mention that a knife was used in the attack; and, it was agreed without consultation with the victims. The process was unfair fair, so the victims were denied procedural justice.

Plea bargaining, it seems to me, is too closely linked to sentencing. The case example and the study suggest that plea bargaining can result in an injustice not only to the defendant but also to the victim. Furthermore, some police and some victims (among others) criticise plea bargaining because it allows defendants to escape being called to account for their serious offences.

Both charge bargaining and plea bargaining create problems for equality. Two defendants who commit essentially the same offence may be treated differently if one bargains and the other does not. Furthermore, some innocent yet accused people may be willing to accept either a charge or a plea bargain rather than take the risk of going to trial or because they cannot afford to defend themselves effectively.

Both charge bargaining and plea bargaining are often said to reduce delay and the cost of criminal proceedings. Is the cost too high for victims, for defendants, and for the public?

Posted by: Michael OConnell, Commissioner for Victims Rights | Jun 9, 2012 9:58:07 AM

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