Why Criminal Defendants Cooperate: The Defense Attorney's Perspective

76 Pages Posted: 17 Mar 2023 Last revised: 4 Apr 2023

See all articles by Jessica Roth

Jessica Roth

Yeshiva University - Benjamin N. Cardozo School of Law

Anna D. Vaynman

John Jay College - CUNY Graduate Center

Steven D. Penrod

John Jay College of Criminal Justice

Date Written: March 12, 2023

Abstract

Cooperation is at the heart of most complex federal criminal cases, with profound ramifications for who can be brought to justice and for the fate of those who decide to cooperate. But despite the significance of cooperation, scholars have yet to explore exactly how individuals confronted with the decision whether to pursue cooperation with prosecutors make that choice. This Article—the first empirical study of the defense experience of cooperation—begins to address that gap. The Article reports the results of a survey completed by 146 criminal defense attorneys in three federal districts: the Southern District of New York, the Eastern District of Virginia, and the Eastern District of Pennsylvania. Our study provides an entirely new and enriching perspective on the cooperation decision, building on prior theories from the cooperation and plea-bargaining literature, and providing for a more nuanced understanding of cooperation and its motivations. In several closed- and open-ended responses, attorneys shared their opinions—at times remarkably consistent, at times strikingly and informatively different—about cooperation practices in their respective districts. The results of this study can be used to further explore the theoretical foundations of cooperation and plea bargaining and can be used to build experimental studies to test causal relationships that are otherwise nearly impossible to determine.

Suggested Citation

Roth, Jessica and Vaynman, Anna and Penrod, Steven D., Why Criminal Defendants Cooperate: The Defense Attorney's Perspective (March 12, 2023). 117 Nw. U. L. Rev. 1351 (2023), Cardozo Legal Studies Research Paper No. 698, Available at SSRN: https://ssrn.com/abstract=4390873

Jessica Roth (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States
212-790-0489 (Phone)

Anna Vaynman

John Jay College - CUNY Graduate Center ( email )

Steven D. Penrod

John Jay College of Criminal Justice ( email )

445 West 59th Street
New York, NY 10019-1199
United States

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