Abstract

http://ssrn.com/abstract=1443997
 


 



Plea Bargaining and Convicting the Innocent: The Role of the Prosecutor, the Defense Counsel, and the Judge


F. Andrew Hessick


University of Utah - S.J. Quinney College of Law

Reshma Saujani


Yale University - Law School

2002

Brigham Young University Journal of Public Law, Vol. 16, p. 189, 2002

Abstract:     
The vast majority of criminal cases are resolved by guilty pleas. While practitioners commonly perceive plea bargaining as effectuating justice, numerous commentators have called this proposition into question. This article examines what some commentators have referred to as the 'innocence problem' in plea bargaining - the question of whether and why innocent defendants might plead guilty - by scrutinizing the roles of prosecutors, defense attorneys, and judges and discussing the ways in which each might contribute to the problem rather than alleviate it. This article argues that the incentives to a plea bargain are powerful enough to blind the prosecutor to the defendant's actual culpability. In addition, various pressures lead defense attorneys to plea bargain most cases. Even innocent defendants may plead guilty; such inclination to plead guilty derives from a combination of factors including their attorney's aversion to trial and the attractiveness of the prosecution's inducements. Structural incentives encourage judges to allow plea bargaining. These incentives also increase the possibility that the innocent defendant will be incarcerated. This article offers several suggestions for reforming the plea bargain system, addressing particular problems discussed in the article.

Number of Pages in PDF File: 54

Keywords: plea bargaining, criminal law, guilty pleas

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Date posted: August 4, 2009  

Suggested Citation

Hessick, F. Andrew and Saujani, Reshma, Plea Bargaining and Convicting the Innocent: The Role of the Prosecutor, the Defense Counsel, and the Judge (2002). Brigham Young University Journal of Public Law, Vol. 16, p. 189, 2002. Available at SSRN: http://ssrn.com/abstract=1443997

Contact Information

F. Andrew Hessick (Contact Author)
University of Utah - S.J. Quinney College of Law ( email )
332 S. 1400 East Front
Salt Lake City, UT 84112-0730
United States
Reshma Saujani
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
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