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39 Law & Hum. Behav. 431 (2015)
Does Evidence Really Matter? An Exploratory Analysis of the Role of Evidence in Plea Bargaining in Felony Drug Cases

handle is hein.journals/lwhmbv39 and id is 428 raw text is: Law and Human Behavior 2015. Vol. 39. No. 5. 431-442 © 2015 American Psychological Association 0147-7307/15/$12.00 http://dx.doi.org/10.1037/lhb0000142 Does Evidence Really Matter? An Exploratory Analysis of the Role of Evidence in Plea Bargaining in Felony Drug Cases Besiki L. Kutateladze and Victoria Z. Lawson Institute for State and Local Governance of the City University of New York Nancy R. Andiloro New York City Department of Probation, New York, New York The majority of cases in the United States are disposed of through plea bargaining; however, this important discretionary point has received relatively little attention from researchers compared with trial and jury proceedings, and other discretionary points such as arrest and sentencing. Additionally, although evidence is considered an important factor in determining case outcomes, its influence on prosecutors' decisions regarding plea offers is less clear. In this study, we examined the potential impact of evidentiary factors, as well as other legal and extralegal factors, on two plea bargaining decisions, plea-to-a-lesser- charge offers and sentence offers, using data on felony drug cases processed by the New York County District Attorney's office. We found that prosecutors made more punitive charge offers when they had audio/video evidence, eyewitness identification(s), prerecorded buy money used by an undercover officer in a buy-and-bust operation, or had recovered currency. Of all evidence factors analyzed, only the recovery of currency predicted sentence offers. By contrast, three other factors defendants' detention status, the presence of multiple plea offers, and prior prison sentence had a much greater impact on charge and sentence offers. Although additional research is needed, it is possible that evidence has a greater impact at the initial stages of a case, particularly on the decision about whether to accept a case for prosecution, than it does on subsequent prosecutorial decisions. Keywords: evidence, felony drug cases, plea bargaining Plea bargaining plays an important role in the criminal justice system. Indeed, outcomes tracked by the Bureau of Justice Statis- tics indicate that roughly 95% of both federal and state cases are disposed of via guilty plea rather than trial conviction (Pastore & Maguire, 2005). By contrast, the majority of research has focused on trial proceedings and jury or juror decision making (Devine, Clayton, Dunford, Seying, & Price, 2001; Greene et al., 2002; Kramer, Wolbransky, & Heilbrun, 2007), with less focus on the plea bargaining process and determinants of plea offers. Further- more, although evidence plays an important role in prosecutorial decision making (Albonetti, 1987; Jacoby, Mellon, Ratledge, & Turner, 1982; Spohn & Holleran, 2001), the role of different types of evidence in prosecutors' decisions at various stages of the plea bargaining process is unclear. This article was published Online First June 8, 2015. Besiki L. Kutateladze and Victoria Z. Lawson, Institute for State and Local Governance, City University of New York; Nancy R. Andiloro, New York City Department of Probation, New York, New York. Points of view expressed in this report are those of the authors and do not necessarily represent the official position of the U.S. Department of Justice or the views of the district attorneys in participating jurisdictions. This study was supported by Grant 2011-DJ-BX-0038 from the National Insti- tute of Justice, Office of Justice Programs, U.S. Department of Justice. Correspondence concerning this article should be addressed to Besiki L. Kutateladze, Institute for State and Local Governance, City University of New York, 10 East 34th Street, 5th floor, New York, NY 10016. E-mail: besiki.kutateladze@isig.cuny.edu Although existing research on plea bargaining has considered the role of the prosecutor (e.g., McAllister & Bregman, 1986b; Myers & Hagan, 1979; Vance & Oleson, 2014), defense attorney (e.g., Kramer et al., 2007; McAllister & Bregman, 1986a), and defendant (e.g., Albonetti, 1990; McAllister & Bregman, 1986a), we focus on the role of the prosecutor because prosecutors argu- ably have the most control over the plea bargaining process. Prosecutors exercise nearly unlimited discretion and are subject to little accountability (see, e.g., Ball, 2006; Frase, 2000; Shermer & Johnson, 2010). They decide whether to file criminal charges in a case, what and how many offenses to charge, whether to offer a plea to a lesser charge or sentence, and what sentence to recom- mend if a defendant is convicted. Given that most cases are resolved by guilty plea (Pastore & Maguire, 2005), plea bargaining plays an essential role in shaping punishment outcomes (Forst, 2002). Unfortunately, these negotiated processes are not formally recorded in court records, and even when they are, researchers seldom are granted access to them. Examining the role of evidence presents an additional problem as, even when access is granted, evidence factors are notoriously hard to capture (e.g., Frederick & Stemen, 2012; Myers & Hagan, 1979). Quantifying evidentiary considerations introduces a mammoth task for researchers. De- tailed information on evidence is rarely recorded electronically, thus necessitating the individual review of criminal case files, which is time-consuming and requires significant efforts for de- veloping data collection protocols and training data entry staff. For this reason, it is rare for researchers to be able to examine detailed administrative data on evidence. A viable alternative to case file reviews is interviewing prosecutors about the role of evidence in 431

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