
Contents
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Innocent Defendants and the Temptation to Plead Guilty Innocent Defendants and the Temptation to Plead Guilty
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Why Do Prosecutors Offer Generous Pleas in Weak Cases? Why Do Prosecutors Offer Generous Pleas in Weak Cases?
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Tunnel Vision Tunnel Vision
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Loss Aversion Loss Aversion
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Passion Passion
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Closure Closure
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Concern with Public Perception Concern with Public Perception
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Work Experience Work Experience
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Career Goals Career Goals
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Office Policies and Idiosyncrasies Office Policies and Idiosyncrasies
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The Failure of Legal Doctrines and Ethical Rules to Protect the Innocent during Plea Bargaining The Failure of Legal Doctrines and Ethical Rules to Protect the Innocent during Plea Bargaining
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A New Plea Bargaining World A New Plea Bargaining World
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Trial Tax Reform Trial Tax Reform
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Disclosure Rules and the Plea Bargaining Process Disclosure Rules and the Plea Bargaining Process
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Judicial Monitoring of Prospective Pleas Judicial Monitoring of Prospective Pleas
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A Word about No Contest and Alford Pleas A Word about No Contest and Alford Pleas
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Cite
Abstract
This chapter considers prosecutorial choices before trial that may contribute to wrongful convictions, with particular emphasis on decisions about plea bargaining. Plea agreements are based on a strong presumption of correctness. The point of plea bargaining is to achieve a quick, tidy, and final resolution. An enduring question, however, is whether plea bargaining harms the innocent. This chapter first looks at the tendency of some innocent defendants to rationally forgo their right to trial and plead guilty before discussing the reasons why prosecutors offer generous pleas in weak cases, including tunnel vision and loss aversion. It then examines the failure of legal doctrines and ethical rules to protect the innocent during plea bargaining and concludes by suggesting reforms to address the most glaring flaw in plea bargaining practices: that some innocent defendants plead guilty to avoid the uncertainty of going to trial and receiving a higher sentence upon conviction.
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