Judicial Notebook

Criminal defendants often choose between two fates: The certainty of a plea agreement and the uncertainty of a trial. Defendants can plead guilty and accept punishment under a plea agreement, thereby forgoing any chance of a complete acquittal at trial. Alternately, they can reject the plea agreement and pursue an acquittal at trial, thereby risking a more serious conviction and harsher punishment than they would have received under the plea agreement. Plea negotiations are so important that defendants are guaranteed assistance by competent attorneys throughout this process. But this also means that the defendants’ decisions are likely to be heavily influenced by their attorneys’ advice.

Although attorneys are advocates for their clients, the ultimate decision to accept or reject a plea can only be made by the client. What, then, should be the result when an attorney insists, against the client’s desire, upon rejecting a plea offer? What if the defendant receives a harsher sentence at trial than was offered in the plea agreement? The U.S. Supreme Court recently heard oral arguments about these issues in the case of Cooper v. Lafler.

Cooper was charged with assault with intent to murder. During plea negotiations, the prosecutor offered a plea deal that would have likely resulted in a 51- to 85-month prison sentence. The record indicates Cooper admitted to guilt and wanted to accept the offer, but his attorney was insistent that he could not be convicted of assault with the intent to murder because he had only shot the victim below her waist. At trial, the defendant was convicted and sentenced to 185 to 360 months for the assault with intent to murder charge.

Despite his reluctance, Cooper nonetheless decided to go to trial. Why would he do that? Classic psychological research consistently demonstrates that authority figures can be very coercive. It is quite possible that Cooper felt compelled to follow his attorney’s advice to go to trial and forgo the plea agreement. Even if not coercive, the attorney’s suggestions were likely viewed as a source of expert information for the client who was facing a very difficult decision.

Cooper challenged his conviction on the ground that his attorney was incompetent for letting him go to trial rather than accepting the plea offer. But how would Cooper have felt about his attorney had he accepted the plea offer? Criminal defense attorneys are all too familiar with their convicted clients’ discontent with whichever choice was made. If the clients take the deal, they view the decision to forgo trial as a bad one. If they go to trial and come out worse, they view the decision to go to trial as a bad one.

Although Cooper’s attorney urged Cooper to take what proved to be a losing gamble, no one knew beforehand how the jury would have voted. Yet, people have a tendency to think past events are more predictable than they actually were. This tendency is called hindsight bias and it probably played a role in how Cooper viewed his attorney and the case. Armed with knowledge of his conviction and sentence, Cooper probably viewed his defense attorney’s suggestion to take the case to trial more negatively than he would have evaluated that same decision had there been an acquittal.

Even though Cooper’s case ultimately went to trial, approximately 95 percent of criminal cases are disposed of through the plea negotiation process, making it an area of legal decision-making ripe for psychological research. Such study could apply classic psychological theories like those related to authority and hindsight bias and their effects on defendants’ decision-making processes.

Research could also focus on the general process of plea negotiations and the role attorneys play in it. Recent research by Vanessa Edkins, PhD, at the Florida Institute of Technology has focused on the role of a defendant’s race in plea negotiations. Specifically, when the defense attorneys read about a minority as compared to a white client, the projected plea agreement was harsher. Still, much more research is needed to examine the entire plea negotiation process and a defendant’s decision to accept or reject such offers.

"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).