For the Defense - Vol. 6, Issue 2 - 31

confirming the innocence phenomenon.
Second, direct knowledge of relevant
collateral consequences did not alter
defendant decision-making, despite
the sometimes life-long impact of
these measures. Though disturbing,
this
finding
is
have
consistent
less
impact
with
psychological research on temporal
discounting, which posits that later
consequences
on
decision-making than immediate ones.
Here, more immediate considerations,
such as reduced sentences or release
from pretrial detention, drove the
participants' choices. Third, the
study found that pretrial detention
significantly influenced plea decisions.
Of particular importance here, the rate
of innocent individuals who pleaded
guilty tripled in the pretrial scenarios.11
As debate continues regarding how to reform
the pre-trial detention system in the United
States, consideration must be given to the ways
in which pre-trial detention hinders one's ability
to exercise the Sixth Amendment right to trial.
In December 2020, Dr. Edkins, Professor
Andrew Pardieck, and I published a new study
that built on the previous deception paradigm
and that added a significant additional layer
of data regarding the coercive effects of plea
bargaining. Once again, students who believed
they were participating in a study regarding
group versus individual work were accused of
cheating. Once again, some of the students had,
in fact, cheated and others were " innocent "
of the charges. The new study differed from
the prior research in a number of important
ways. For example, this research was conducted
simultaneously in the United States, Japan,
and South Korea. Further, the new paradigm
included an increased role for counsel and more
consistent stigma consequences regardless of
whether one took the deal or proceeded to
trial. Of particular note here, the new research
also tested not only whether participants were
willing to confess to their own alleged conduct,
but whether the participants were also willing
to indicate who instigated the cheating and
whether the participants were willing to provide
evidence against the other student at a formal
hearing. If the goal of a criminal justice system
is to ensure that only the guilty are punished,
the results of this new research raise serious
questions about the use of plea agreements to
further this goal.
In the first
version
of the new study, a
significant number of participants in the United
States once again pleaded guilty, including 42.9
percent of those who had not in fact committed
the alleged conduct. Further, in this version of
the study, 58.5 percent of the U.S. students who
falsely pleaded guilty also falsely implicated
the other student as the instigator of that nonexistent
cheating. In the second version of the
study, where students were required to not
only identify who instigated the cheating but
were required to also testify against them in an
official proceeding, 65.8 percent of the innocent
participants pleaded guilty. Of that number, 52
percent indicated that the other student started
the cheating, which never actually occurred,
and, even more troubling, 88 percent were
willing to testify that cheating had occurred,
and that the other student was involved. Again,
of course, there was no cheating in these cases,
yet participants were willing to state an untruth
during an official proceeding in return for the
benefits of the bargain that had been offered.
While outside the scope of this piece, I will note
that the phenomenon of false pleas by the
innocent was observed in each country studied.
The full results of this research are available in
the below cited article recently appearing in the
Fordham International Law Journal.12
In 2012, Justice Anthony Kennedy in Lafler
v. Cooper wrote, " criminal justice today is for
the most part a system of pleas, not a system
of trials. " 13
In the 2012 companion case of
Missouri v. Frye, Justice Kennedy elaborated on
the significance of this statement.
Because ours " is for the most part
a system of pleas, not a system of
trials, " it is insufficient simply to point
to the guarantee of a fair trial as a
backstop that inoculates any errors in
the pretrial process. " To a large extent
... horse trading [between prosecutor
and defense counsel] determines who
goes to jail and for how long. That is
what plea bargaining is. It is not some
adjunct to the criminal justice system; it
is the criminal justice system. " 14
As we consider how to move forward in a
criminal justice system dominated by pleas, we
must acknowledge that research over the past
decade has demonstrated that the concerns
surrounding innocence mentioned in passing by
the Supreme Court in the 1970 Brady decision
are real and significant. Further, the research
Vol. 6, Issue 2 l For The Defense 31

For the Defense - Vol. 6, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 2

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