New Study: Significant Risk of Wrongful Conviction in Plea Bargaining

The nation has been enthralled by the story of Brian Banks. A former blue-chip high school football athlete, Banks served five years in prison after a rape conviction, wore an ankle location bracelet, and was labeled a sex offender for five more years, before his victim admitted the rape never happened. When NFL teams lined up to give him a second chance, the nation reveled in the comeback story but also faced troublesome questions. Why would an innocent person take a plea deal that would send him to prison and  label him a sexual offender? How often does this happen? A new study suggests many are vulnerable to taking a deal even when innocent.

Lucien E. Dervan and Vanessa Edkins report here that over half of the participants in a research study were willing to falsely admit guilt in exchange for perceived benefits. For example, a college student was accused of cheating and presented with benefits in exchange for saving her university the trouble of pursuing disciplinary action against her. She decided to take the deal. Unknown to the student was the fact that she was part of a study to replicate the hard choices suspects face in criminal justice. The study authors, of course, knew that she was innocent of the charge.

Brian Banks pleaded nolo contendere or no contest. As Mark Godsey explained here, this plea enables the defendant to neither admit nor dispute the charges against him. We all now know that Banks was innocent, but, on the advice of counsel, decided not to risk a conviction and a draconian sentence.

The authors of this study cite the U.S. Supreme Court in opinions that acknowledge the potential risk of innocent persons agreeing to plea bargains and the importance of using plea bargaining only in cases in which evidence of guilt is very strong.

In Banks’s case, and in countless others, the testimony of the victim is considered strong evidence in a he-said, she-said crime. Eyewitness identification in stranger-to-stranger cases has often been considered virtually irrefutable evidence. But we’ve learned that a victim can lie, and that eyewitness identifications have been historically wrong 25 percent of the time in thousands of cases in which rape kit DNA has been compared with the DNA of the prime suspect, identified by the victim. These lessons cast doubt on the evidence that has often prompted a suspect to take a plea deal.

The U.S. Supreme Court in Brady v. Maryland acknowledged plea bargaining as a method of adjudicating justice, but it also recognized the potential need to reexamine this practice “if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.”

Most in the criminal justice system acknowledge that plea bargaining serves a purpose and often results in a fair resolution, saving the time and expense of going to trial presumably in cases in which evidence of guilty is strong or overwhelming. The system would collapse if all cases went to trial. But the case of Brian Banks, the lessons of DNA, and the results of research such as that noted here, suggest that new caution must be given to plea bargaining. We can never permit our need for expediency to trump the pursuit of true justice.

17 responses to “New Study: Significant Risk of Wrongful Conviction in Plea Bargaining

  1. Thank you so much for this spot-on observation about today’s hot news. After following the legal and medical debates over shaken baby syndrome for some years now, I’ve seen dozens of innocent caretakers accept plea bargains. Please see, for example,

  2. For this reason, I’ve often felt that the Alford Plea is particularly insidious. I’ve seen it used to offer a 6 year probationary sentence in a case which, if it had gone to trial, may have resulted in a murder conviction. The defendant steadfastly maintained her innocence. The state’s case was particularly weak and the deal was undoubtedly offered as a way for them to save face. Had the defendant gone to trial with an adequate defense, it would have left her financially devastated for years, regardless of the outcome. What reasonable person, guilty or not, would turn down such an offer?

    • Jeremy, the use of the Alford Plea in a case with “particularly weak” evidence is indeed troublesome and does not seem to meet the intended conditions of this plea option. In your scenario, both prosecutor and court agreed on a sentence without a guilt determination, which became the most acceptable option for the defendant, guilty or not.

  3. An Alford plea is not the same thing as a nolo contendere. Do some research before youake assertions about the law.

    • Melissa, I read that Banks took an Alford plea but have not been able to find the reference again, so I deleted this from the piece at least for now. I’m not a lawyer, but my understanding is that an Alford plea enables one who maintains innocence to admit that the prosecution has evidence that could prove the charge. In essence the defendant is allowed to plead guilty if it is in his or her best interest, and yet maintain innocence. Nolo contendere or no contest enables the defendant to neither admit nor dispute the charges against him. While not identical, the outcome of the two pleas are the same (which may be why you see them used interchangeably)…the defendant does not acknowledge guilt but accepts the sentence. Both pleas must be accepted at the discretion of the court; both can’t be used against the defendant in civil litigation; both are agreements that preclude a trial.

  4. My husband is a victim of this same thing, he was young scared and threatened by prosecutors who told him he would never see the light of day again and to kiss his freedom goodbye if he took it to trial they would make sure he got the maximum 158 YEAR sentence so he chose to plea to a crime he did not commit. He has served 12 years of a 40 year sentence for a crime he didn’t commit based on hearsay. Where is the justice for my husband? We simply want him to be able to live with us and raise our children.

    • Tiffany:
      You are correct, so many men and teenage boys (some women) are being convicted of sexual crimes with little or no evidence, only hear say. I agree with you that thorough investigations need to be followed through before a person is charged with a crime. Furthermore, you are correct in stating that prosecutors know that they can get a conviction just by a “victims” testimony, so therefore they offer pleas. This is just not right! My 17 year old son is a “victim” to false accusations and the legal system! He will forever be labled a sex offender for life.

  5. C. Edward Mack

    No one is citing the true culprits in these scenarios…the Biased…Guilty until proven innocent…jury…who want to please the judge and prosecutor by not holding the system up to the high burden of proof standard of beyond a reasonable doubt. The jury instructions tell them they can convict on the testimony of one witness…and they do. Many times the jury is so prejudiced towards a defendent because of the way they look, their racial background, their history and the crime they have been charged with committing…that they never even get to evaluating the evidence…be it strong or weak…THEY DON’T WANT TO HEAR IT…their minds are made up to get this undesirable off the street based on their perception of the person and not on the evidence to prove the facts. Unfortunately there is a great divide and difference between our ideals of justice in our country of political, social and religous freedoms AND the sad reality ot the way we actual treat people in the criminal justice system. Don’t get me wrong, there are plenty of people who need to go to jail…and if there is adequate evidence…they should…but this article rings true and everyday I see prosecutors and judges that don’t care about the strength of the evidence…just the conviction. They are bankrupting our government and overcrowding our prisons and jails because they are not sensitive to what they are not only doing to the accused but to government employees. Today the court will be firing many staff members and it is my belief that needless prosecution of overcharged crimes and actions that aren’t crimes and the expense of processing these actions and housing the many people who should not be there…are the main causes of this tragedy. How will they pay their mortgages and feed their kids? The system doesn’t care as it pours more money into the Law Enforcement and Prosecutorial Departments. Maybe if their budgets were cut we’d see a different prospective that might help cure this problem. Folklore has it that a prosecutor was once heard to exclaim, “Anyone can convict the guilty, but it takes real skill to convict the innocent!”

  6. Pingback: The System Would Collapse If All Cases Went To Trial, So You Get The Plea Bargain « Montana Corruption

  7. The article does not mention the benefits of many people in the “justice system” that push people into a plea so they are able to notch another conviction on their resume. Perhaps when conviction rates are not used for personal advancement, the pursuit of justice and truth may become more important in the process. It also is not mentioned that when a person comes in front of a parole panel, to not be remorseful for a crime one didn’t commit will cause the and not compromising one’s integrity to satisfy a system not interested in justice. I cannot fathom how any fair minded semi intelligent person cannot be outraged to see that people are incarcerated for decades when in many instances the truth can be found in a $30.00 test! Can one possibly feel there is justice in a system that requires copious amount of time and money and resources not available to most people to break down barriers to the truth? FREEPAULCORTEZ.ORG

  8. It’s about time somebody figured this out. People plead guilty all the time to crimes they didn’t get because the prosecution stacks the charges, thereby insuring that if they don’t take the plea bargain and are convicted, wrongfully or not, they will spend many many years in prison. I have seen it happen. The alternative to the plea bargain in many cases is just too great.

  9. Pingback: &raquo Wrongful Convictions – Risks of Plea Bargains

  10. I cant understand why are goverment does not start to investgate all sex abuse casess i live in oregon and my roomate took his 6year old daughter to a movie and she had a bad belly ache durring movie so she ask her daad if she can sit on his lap so he can rub her tummy so he lifted her shirt and rubbed her stomach while doing so two 14 year old girls called police and said he was rubbing her nipples after that comes the police and one month later he gets 15years in prison and his daughter now ten years old wants her dad back she told police she had a belly ache it seems crazy we also have video tape shows them in theater while he was rubbing her belly

  11. That is really disgusting,her dad was trying to make her stomach get better,this whole dam justice,and so called victims making up lies,and cops making up lies,is really pathetic. Ruin lives for nothing.just one statement from any stranger,and the so called justice bull system and your life can be rironed in a blinc of lie. But a. Swatters.the swatter should go to jail for there lies of innocent people,thousands of money from counties and home taxes going up because the cops,aren’t getting the bad guys,just falsely accusing innocent guys in their twenties.public defenders,it should be outlawed that they can’t cowarse people into guilty,when they first said innocent,then young guys with no record,is trapped into guilty,when pd tell them you’ll have 100percent chance of going to jail.this is so unconstitutional,and so wrong, these law enforcement people have to get caught in the act.myself and a lot others can’t stand to see this happen to young men.especially with no criminal background,why do pd cowarse people into guilty,by lying and getting away can they sleep at getting ahold of the high up in law,and put this to a end. It should also be told on the news.its unjust,uncivil,and pathetic.we have to defend our guys that are innocent,and swatters making a statement and their life is destroyed.please help these young guys,


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