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Objective: to study issues related to the lawyer and client interaction regarding building a legal position on the case and the plea process.Methods: the article uses the universal dialectical method of cognition, as well as general (analysis, synthesis, induction, deduction) and specific scientific research methods (formal-legal method).Results: As the United States has shifted to “a system of pleas,” the role of defense attorneys has swung from trial litigator to plea negotiator. The study results indicated that defense attorneys spend a significant amount of time meeting with clients. Attorneys also cited substantial deficits in criminal defendants’ knowledge of the legal system, as well as many misconceptions regarding legal procedures. The respondents provided a diversity of responses regarding the most important advice they offer their clients with many mentioning facts related to the case resolution process, the direct and collateral consequences associated with a criminal conviction, the role of the defense attorney, and the importance of the right to silence. Further, over half of the attorneys surveyed indicated a general hesitance and 15.0% – an outright refusal to provide an explicit plea recommendation to their clients.Scientific novelty: The plea process is complex, and defense attorneys play a critical role in this process. The current work highlights how that role has potentially evolved – moving from adviser to educator and evaluator. More qualitative data collection like this is needed to illuminate how attorneys influence defendants’ decision-making rather than just whether they do and by how much. This type of research on “expanded criminal defense lawyering” often goes above and beyond typical outcomes, and instead focuses more on the process, such as plea negotiations and effective attorney-client communication, and often incorporates the defendants’ perspectives. Such studies will inform future avenues for research and how best to operationalize attorney-client communication. The research substantiates the need to reduce the burden on defense attorneys by making it easier for them to ensure that their clients are meeting the knowing and intelligent requirements for plea decisions.Practical significance: the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering issues related to building a legal position on the case and the plea process.

China's criminal proceedings have been recognized as being “investigation centred.” I argue that the rise of the Plea Leniency System has led to “prosecution centredness.” Analysis of the operation and consequences of plea leniency shows how the procuratorate has overshadowed the police and further marginalized the courts. In plea leniency, the defendant has little chance of being acquitted and the legal profession provides little defence. While this paradigm shift signals further leniency in criminal justice, rights protections make way for efficiency and crime control. As such, plea leniency has profound implications for the operation of the criminal justice apparatuses, defendants, defence lawyers, and the mode of crime control in China.

We examine whether elections of public prosecutors influence the mix of cases taken to trial versus plea bargained. A theoretical model is constructed wherein voters use outcomes of the criminal justice system as a signal of prosecutors' quality, leading to a distortion in the mix of cases taken to trial. Using data from North Carolina we test whether reelection pressures lead to (a) an increase in the number and proportion of convictions from jury trials and (b) a decrease in the average sanction obtained in both jury trials and pleas. Our empirical findings are consistent with our theoretical predictions.

While pleading guilty has become ubiquitous in criminal trial courts, limited research has focused on the plea process and the factors that influence guilty plea convictions. Numerous theoretical accounts of the plea process highlight the importance of the court actors and their interactions. Based on this research, the current study analyzes the impact of courtroom actor familiarity and similarity on the chosen mode of disposition and the time to disposition. The findings demonstrate that similarity among the actors and familiarity between the prosecutor and judge increase the odds of a plea disposition and reduce the days to disposition. However, familiarity of the defense attorney seems to impede on the informal plea process, such that cases are more likely to proceed to trial when the defense attorney is more familiar with the other actors.

Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: over confidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The oversimplified shadow-of-trial model of plea bargaining must thus be supplemented by a structural-psychological perspective. In this perspective, uncertainty, money, self-interest, and demographic variation greatly influence plea bargains. Some of these influences can be ameliorated, others are difficult to correct, but each casts light on how civil and criminal bargaining differ in important respects.

Scholars highlight an \"innocence problem\" as one of plea bargaining's chief failures. Their concerns, however, are misguided. In fact, many innocent defendants are better off in a world with plea bargaining than one without it. Plea bargaining is not the cause of wrongful punishment. Rather, inaccurate guilty pleas are merely symptomatic of errors at the points of arrest, charge, or trial. Much of the worry over an innocence problem proceeds from misperceptions over (1) the characteristics of typical innocent defendants; (2) the types of cases they generally face; and (3) the level of due process they ordinarily desire. In reality, most innocent defendants are recidivists, because institutional biases select for the arrest and charge of these repeat players. And most cases are petty. In these law-stakes cases, recidivist innocent defendants face high pretrial process costs (particularly if the defendants are detained). But innocent defendants also enjoy low plea prices because prosecutors do not try to maximize sentence length in low-stakes cases. Moreover, defendants possess certain underappreciated bargaining advantages in these cases. In the end, the costs of proceeding to trial often swamp the costs of pleading to lenient bargains. Put differently, many recidivist innocent defendants are punished by process and released by pleas. Thus, plea bargaining is no source of wrongful punishment; rather, it may be a normative good that cuts erroneous punishment short. Accordingly, the system must provide innocent defendants access to plea bargaining. Current vehicles for rational choice pleas--like no-contest pleas and equivocal pleas--are not up to the task. Instead, the system should reconceive of false pleas as legal fictions and require defense lawyers to advise and assist innocent defendants who wish to enter into plea bargains and mouth dishonest on-the-record words of guilt.

This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the \"presumptive sentence\" or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal inference methods that fail to disentangle the effects of sentencing-law changes, such as Booker, from surrounding events and trends. In contrast, we use a dataset that traces cases from arrest to sentencing, allowing us to assess Booker's effects on disparities in charging, plea-bargaining, and fact-finding, as well as sentencing. We disentangle background trends by using a rigorous regression discontinuity-style design. Contrary to other studies (and in particular, the dramatic recent claims of the U.S. Sentencing Commission), we find no evidence that racial disparity has increased since Booker, much less because of Booker. Unexplained racial disparity remains persistent, but does not appear to have increased following the expansion of judicial discretion.

We study how plea-bargaining behaviors may respond to a change in two important policy variables in criminal law: the level of exoneree compensation and the accuracy of the exoneration process. Confirming the theoretical predictions, we experimentally find that prosecutor subjects make more lenient plea-bargaining offers in response to higher exoneree compensation, and less lenient offers in response to higher exoneration accuracy. We also find that defendant subjects do not directly respond to a variation in exoneree compensation, and are less likely to plead guilty when exoneration accuracy is lower, the effect being significantly stronger for guilty defendants.

In recent years, trial waivers (plea bargains in the United States) have been introduced into many legal systems around the world. Once trial waivers (TW) were introduced, most—if not all—of these legal systems witnessed a steep increase in the usage of TW, to the extent that trials are virtually disappearing. Our model explains why introducing TW into a legal system would almost inevitably trigger a dynamic process whose ultimate result is that all defendants choose the TW. The crux of the idea is that defendants who choose the TW option impose a negative externality on other defendants: the former help the prosecution save resources, thus forcing the latter to face stronger prosecution if they choose to go to trial. This further explains the observed increase in conviction rates in trials. We also show that the introduction of TW increases total sanctioning and reduces the welfare of many, if not all, defendants. The intuition for this is that a harsh punishment in a TW, which initially attracts only the most risk-averse defendant, becomes over time attractive to more and more defendants as the expected sanction in trial becomes more severe.

We present a model of plea bargaining and vary the value a prosecutor places on a conviction obtained via plea bargain relative to a conviction obtained at trial. We show that increasing the relative value of a plea bargain increases the trial penalty and decreases the severity of the equilibrium plea bargain. We report the results of an exploratory experiment which assesses this prediction in a more realistic setting, in which subjects are incentivized by conviction rates. Our treatment variable is whether convictions obtained via plea bargain are included in conviction rate calculations. Including plea bargains in conviction rates increases the number of plea offers made and increases the trial penalty, which is qualitatively in line with our predictions.