"Reject the Offer": The Asymmetric Impact of Defense Attorneys' Plea Recommendations

A significant number of factually-innocent defendants enter false guilty pleas for a variety of reasons. One such reason may be the psychological and social influence a defense attorney’s recommendation has on the defendant. This experiment (comprised of two studies) explores the impact of an attorney’s recommendation on a factually-innocent defendant’s decision to plead guilty using a computer simulation. The study yielded multiple results. The first result confirmed prior research that guilty defendants are more likely to plead guilty. The second indicated that attorney recommendations do not have a staggering effect on defendants’ decision to plead guilty. However, the content of an attorney’s recommendation can influence a defendant’s decision whether to plead guilty. An attorney’s recommendation to reject the guilty plea had the most profound impact on defendant-participants’ willingness to alter their plea decision when they were inclined to plead guilty, but the same effect was not seen in participants who were predisposed to reject the guilty plea or those who were told not to accept a guilty plea. These results highlight the importance of attorney recommendations throughout the plea process and the impact those recommendations can have on the overall fairness of pleas.

“For some defendants, accepting a guilty plea might be the most rational decision; but from a fundamental fairness position, our system should strive toward increasing the number of true guilty pleas, while reducing the number of false guilty pleas. . . . These findings underscore the importance of attorney advice, and the potential impacts of explicit recommendations on the diagnosticity and fairness of plea-bargaining.” p. 1336