Logical But Incompetent Plea Decisions: A New Approach to Plea Bargaining Grounded in Cognitive Theory

Differing cognitive processing styles affect how defendants retain information and think critically. Under Fuzzy-Trace Theory, people encode information either verbatim or by gist. Those with verbatim memory better recall precise surface details including exact words, numbers, or pictures. In contrast, those with gist memory have a better grasp of the information’s substance or essential meaning. Verbatim-processors lack the ability to make more-informed plea decisions because their cognitive processing style is developmentally inferior to that of gist-processors. Consequently, verbatim processing leads to unhealthy risks. This risky-choice study tested how probability of conviction, sentence-length distinction, conviction-charge distinction, and guilt/innocence condition influenced the plea decisions of over four hundred adult participants. Each was presented with four hypothetical scenarios in which he had to choose between accepting or rejecting a proffered plea bargain. Consistent with Fuzzy-Trace Theory, participants relying more upon verbatim processing were less influenced by guilt/innocence or the distinction between misdemeanor and felony when the probability of conviction was low. Values seemingly had a much larger effect on gist-processors because verbatim-processors’ decisions reflected their values much less significantly. Still, the differences in the decisions recorded for verbatim-processors and gist-processors were due not to a difference in their personal values, but entirely to their cognitive processing styles. The study can help practitioners determine whether an individual is competent to bargain.

“Results suggest that plea decisions are influenced by cognitive processing style; in particular, reliance on gist or verbatim mental representations. This is important for the criminal justice system because it suggests that plea decisions in certain groups may be driven by a predisposition to rely on fine-grained quantitative distinctions, rather than qualitative, categorical distinctions, and bottom-line meaning. This means that certain individuals . . . may not be driven by their values when making plea decisions.” p. 377–78