Dervan- Plea Bargaining Flashcards
(a) According to Rule 11 (FRCP) and the U.S. Supreme Court, all guilty pleas must be “voluntary.” Explain (generally) how the Supreme Court’s view of “voluntary” and pleas has evolved until now. (What was allowed before and what is acceptable now.)
–The Court evolved from not wanting to see any kind of flattery or hope with the plea. Next, the Court adopted that the confession must have been made freely, voluntarily, and without any inducement. As the Court evolved, he explained the Court being almost timid of not having a trial. It then evolved into corruption where the plea bargain was really a bribe. The Court found then that when a defendant is coerced into a plea by threats of harsher punishment, the defendant was deprived of their constitutional rights. Finally, the plea bargain area rose because it saved the government and courts money while putting a defendant away, and the defendant was happier because they had a lesser sentence. It evolved into that because all parties were happy which meant no one was appealing what happened. Less eyes were on these deals so it wasn’t as monitored or reformed. In the 1960’s, the Court evolved into adding voluntary acts to the pleas. It went from watching for threats and physical harm to looking for voluntary acts.
(b) Summarize Professor Dervan’s recent study. (How/why was the experiment set up, what were the results?)
–His study was looking at innocent plea bargaining problems. He wanted to look at what the Supreme Court said about how innocent people do not plead guilty, at least not in significant numbers, to events they did not commit. He created a study where students were told they were participating in an LSAT study together. There were 2 students, and they were told not to share answers. One student was in on the study, and one was not. He found that in all but 2 studies, everyone cheated. 95% of the people when asked to cheat, cheated. Next, he wanted to see how people would react when they were accused of cheating. That study showed that with the guilty students only 89.2% took the plea. With the innocent students, 56.4% of students took the plea when they didn’t actually cheat. They were all in the scenario that they thought was real for a short time. The study showed that many people, that were unsure about whether they really committed a crime, will plead guilty.
He also compared the numbers with a study of mass exonerations with police corruption. In that study roughly the same number, 89% of the guilty please took a guilty plea. The innocent there 77% of the innocent there plead guilty. He believes in his own study, realistically that number is low (56.4% being low). He believes we need to re-examine plea bargaining. He believes when it is used properly, it is very effective. With regards to guilty and innocent, the government didn’t have to offer anything really of value order to get a true guilty person to plea guilty. He really wants to focus on the difference (differential) between those guilty individuals that pled guilty and the innocent individuals that plead guilty.
(c) How do the study’s results undermine the underlying assumption of the SCOTUS 1970 Brady Decision?
–In Brady, the Court said that they don’t need to offer much of an incentive to guilty people that are in fact guilty. He believes that when the incentives are higher or better looking, that is when the innocent plea guilty and that is what we need to watch out for. The study undermines Brady because Brady didn’t look at how innocent people will plead guilty when the incentives are high. The assumptions in Brady were focused on guilty people taking guilty pleas. The study proves that not only do guilty people skip their trial and take a plea, but innocent people do as well. The study also proves that SCOTUS’s assumption of how plea bargaining isn’t a real problem is wrong now.
(d) If Plea Bargaining is necessary to the functioning of our current judicial system what can be done to protect the rights of the accused who choose not to go to trial (according to Prof. Dervan)?
–He wants to start using evidence rules at grand jury hearings. He found that in 1960 proceedings that SCOTUS decided to not worry about those rules as much because they figured the evidence could be excluded at trials. However, no one made it to trials because they took pleas beforehand. He wants grand jury proceedings to offer more protections for defendants.
–He also wants there to be a way to explain all of the collateral consequences to defendants before they plead guilty. He found that there are over 2,200 statutes regulating collateral consequences for defendants which make life for them after prison so much harder.
–He also hinted at looking more internal when prosecutors are doing their job. He stated that many prosecutors think they did a sufficient job because the defendants confessed to the alleged crimes, however that can’t be the norm any longer.
