Plea Bargaining Recommendations by Criminal Defense Attorneys: Evidence Strength, Potential Sentence, and Defendant Preference

Criminal defense attorneys’ recommendations can play a crucial role in a defendant’s decision to plead guilty or go to trial. This study examined the plea process from the defense attorney’s perspective, analyzing how three variables (conviction probability, potential sentence, and the defendant’s wish to plead guilty or go to trial) would influence an attorney’s plea recommendation. The results indicated that conviction probability/strength of the evidence is the most influential variable in determining an attorney’s recommendation. The potential sentence is also important to an attorney’s decision, but it is typically considered in conjunction with the other variables and in an unpredictable manner. Lastly, an attorney’s recommendation may differ depending on whether the defendant wishes to plead guilty or go to trial. It appears that a defendant’s desire to plead guilty had less influence on an attorney’s recommendation than a defendant who wishes to go to trial. Despite the defendant’s desire being a relevant variable, however, the study indicated that attorneys generally provide recommendations that are inconsistent with a defendant’s wish.

“The findings from the study suggest that there is at least one additional variable—defendant’s wish—that criminal defense attorneys consider along with potential sentence and evidence strength.” p. 582