For the Defense - Vol. 6, Issue 2 - 29

the number of all other federal prosecutions
in 1914. In response to the overwhelming case
load this over-criminalization caused in the early
1900s, bargains became a means for dealing
with an underfunded and overburdened system.
Despite the growing use of plea bargaining
in the first half of the twentieth century, the
appellate courts that had rejected the practice
in the late 1800s did not affirmatively change
course. In several instances prior to 1970,
appellate courts expressed continued concern
about the coercive nature of bargains. In one
example, the Fifth Circuit Court of Appeals in
1958 wrote in Shelton v United States, " Justice
and liberty are not the subjects of bargaining
and barter. "
In 1970, however, the uncertain status of
plea bargaining was resolved by the Supreme
Court's decision in Brady v. United States.1
In Brady, to the surprise of those familiar
with the earlier English common law and
U.S. appellate precedent, the Supreme Court
approved the practice of plea bargaining. There
are several reasons for the Court's decision,
including a recognition that plea bargaining
had already grown so dominant that there
was little hope of reversing course. By 1970,
around 90% of convictions at the federal level
arose from guilty pleas.
The Court expanded
on this notion that their hands had been tied
in deciding whether to permit the practice of
plea bargaining in 1970 during their discussion
of the practice in the Bordenkircher v. Hayes
decision several years later. In Bordenkirtcher,
the Court wrote, " [A] rigid constitutional rule
that would prohibit a prosecutor from acting
forthrightly in his dealings with the defense
could only invite unhealthy subterfuge that
would drive the practice of plea bargaining back
into the shadows from which it has so recently
emerged. " 2
In Brady, the Court acknowledged the risk that
plea bargaining might lead innocent defendants
to falsely plead guilty. In response, the Court
made clear that plea bargains must be voluntary,
and the incentives offered to plead guilty must
not " overbear[] the will " of the defendant.
The Court went on, however, to conclude,
without any factual or scientific basis, that such
concerns regarding false pleas of guilty by the
innocent were largely unfounded. The Court
wrote, " [W]e would have serious doubts about
this case if the encouragements of guilty pleas
by offers of leniency substantially increased
the likelihood that defendants, advised by
competent counsel, would falsely condemn
themselves. But our view is to the contrary.... " 3
This unsupported assumption regarding the
reliability of pleas of guilty appeared again in
the 1975 Supreme Court case of Menna v. New
York, which stated, " [A] counseled plea of guilty
is an admission of factual guilt so reliable that,
where voluntary and intelligent, it quite validly
removes the issue of factual guilt from the
case. " 4
Again in the 1985 Supreme Court case
of Hill v. Lockhart, the Court, quoting language
from the United States Court of Appeals for the
Seventh Circuit, similarly said, " [T]he concern
that unfair procedures may have resulted in
the conviction of an innocent defendant is only
rarely raised by a petition to set aside a guilty
plea. " 5
More recently, this unsupported concept
of the reliability of pleas of guilty was echoed
in a 2017 dissent in the case of Lee v. United
States, in which Justice Clarence Thomas wrote,
" In any event, the Court in Hill recognized that
guilty pleas are themselves generally reliable. " 6
While little research was done in the
decades following the Brady decision to test
the Court's assumptions regarding innocence
and defendant decisions-making in the pleabargaining
context, many advances have been
made in this field in the last decade. We now
know, for example, that a significant number of
defendants will falsely plead guilty in return for
the benefits of a bargain. Further, we know that
the presence of counsel can actually increase,
not decrease, the prevalence of false pleas of
guilty. We also know that pretrial detention
can drastically increase the rate of false pleas
of guilty by the innocent. Finally, we know that
defendants will not only falsely plead guilty, but
that they will also falsely testify against a codefendant
in return for the benefits of the deal.
In the remainder of this piece, we will briefly
examine each of these findings.
In a piece published in 2013, Dr. Vanessa
Edkins and I sought to delve more deeply
into the Supreme Court's assumption in Brady
and subsequent cases that pleas of guilty are
generally reliable.7
We did this by conducting
a psychological deception study that tested
how likely it might be that an innocent
individual would falsely plead guilty in return
for the benefits of a bargain. The study involved
students who believed they were participating
in a study regarding individual versus group
work on a test. Below is a brief description of
the methodology of our inquiry.
Vol. 6, Issue 2 l For The Defense 29
For the Defense - Vol. 6, Issue 2

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