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Plea Bargaining Negotiations

By Charles Craver

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Approximately 90 percent of criminal cases are resolved through plea bargaining arrangements. For both the victims of criminal acts and the alleged perpetrators, this is a critical process. Both rational prosecutors and rational defendants must consider the probability of convictions at trial and the likely penalties if defendants are found guilty. They must then consider the transactional costs, both financial and psychological, and determine their best alternatives to negotiated agreements (BATNAs). Party over-confidence and the self-serving bias tend to cause prosecutors to over-estimate the likelihood they will obtain convictions and cause defendants to under-estimate these figures.

Prosecutors usually do not bring charges against defendants unless they have significant evidence of guilt, recognizing that they will have to establish guilt beyond reasonable doubt to prevail. This factor should greatly enhance the bargaining power possessed by prosecutors. This may cause inexperienced defense counsel to cede substantial power to prosecutors. Nonetheless, several competing factors put pressure on prosecutors to reach plea bargaining agreements. First, prosecutors (and public defenders) experience great time pressures to resolve cases due to overloaded dockets and limited departmental resources. They lack the personnel needed to try many cases, and are under pressure to resolve many expeditiously without trials. Second, prosecutors are usually cognizant of their specific win-loss records, and believe that trial losses may negatively affect their reputations and career advancement opportunities.

Plea Bargaining Negotiations By Charles B. Craver


Copyright © 2015 Charles B. Craver
Copyright ©   2015  The Negotiator Magazine
The Negotiator Magazine  February 2015