Does Evidence Really Matter? An Exploratory Analysis of the Role of Evidence in Plea Bargaining in Felony Drug Cases

Prosecutors are guided by three focal concerns: the defendants’ blameworthiness, community protection, and practical constraints. The strength of the evidence collected also has a noticeable—though weaker than expected—effect on prosecutors’ unbridled discretion. In particular, evidence impacts prosecutors’ choice of charge offers (initial decisions to make plea-to-a-lesser-charge offers) and sentence offers (initial offers of custodial or non-custodial punishment). Evidence is most powerful at the beginning of the prosecutorial process and fades gradually as more decisions are made. This study provided insight into the structure of a typical district attorney’s office, the nuances of case-processing, and the strengths and limitations of data. The study used data from an initial sample of 3,723 felony drug cases processed by the New York County District Attorney’s Office in 2010 and 2011 to perform a multi-variate logistic regression analysis. The Office provided information on prosecutor characteristics, and the researchers interviewed sixteen prosecutors about their case-processing procedures. The results revealed that prosecutors made the most punitive charge offers when they had audio/video evidence, eyewitness identifications, prerecorded buy money used by undercover officers, or recovered currency. However, evidence’s overall impact was more limited than expected.

“The influence of evidence may vary by discretionary point. Evidence appears to have a particularly strong impact at initial case screening, and prosecutors included in a series of focus groups reported that ‘a case will not be accepted for prosecution unless it has strong evidence.’ It appears, however, that there may have been some discrepancy between the reports and the actual influences on their decision making. . . . [C]harging decisions and plea offer recommendations were based primarily on defendant characteristics, rather than evidence strength.” p. 432