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http://ssrn.com/abstract=1656095
 
 

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Some Reflections on Ethics and Plea Bargaining: An Essay in Honor of Fred Zacharias


R. Michael Cassidy


Boston College Law School

February 14, 2011

San Diego Law Review, Vol. 48, No.1, Winter 2011
Boston College Law School Legal Studies Research Paper No. 202

Abstract:     
In this article the author explores what it means for a prosecutor to “do justice” in a plea bargaining context. Although the vast majority of criminal cases in the United States are resolved by guilty plea rather than by trial, ABA Model Rule 3.8, the special disciplinary rule applicable to prosecutors, has very little to say about plea bargaining. Scrutinizing the multiplicity of interests at stake in plea bargaining, the author suggests that a prosecutor’s primary objectives during negotiations should be efficiency, equality, autonomy, and transparency. After defining each of these terms, the author identifies several troublesome and recurring practices employed by prosecutors in the plea bargaining context that in his view violate a prosecutor’s duty to “do justice,” but yet presently are entirely unregulated. He then demonstrates how a focus on efficiency, equality, autonomy and transparency might help prosecutors avoid these ethical minefields.

Number of Pages in PDF File: 19

Keywords: efficiency, equality, autonomy, transparency, prosecutors, plea bargaining, negotiation, ABA Model Rule 3.8s

JEL Classification: K40

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Date posted: August 9, 2010 ; Last revised: July 27, 2011

Suggested Citation

Cassidy, R. Michael, Some Reflections on Ethics and Plea Bargaining: An Essay in Honor of Fred Zacharias (February 14, 2011). San Diego Law Review, Vol. 48, No.1, Winter 2011; Boston College Law School Legal Studies Research Paper No. 202. Available at SSRN: http://ssrn.com/abstract=1656095

Contact Information

R. Michael Cassidy (Contact Author)
Boston College Law School ( email )
885 Centre Street
Newton, MA 02459-1163
United States
617-552-4343 (Phone)

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