Editing Plea bargain (section)

=== Consequences for innocent accused ===
Theoretical work based on the [[prisoner's dilemma]] is one reason that, in many countries, plea bargaining is forbidden. Often, precisely the prisoner's dilemma scenario applies: it is in the interest of both suspects to confess and testify against the other suspect, irrespective of the innocence of the accused. Arguably, the worst case is when only one party is guilty: here, the innocent one has no incentive to confess, while the guilty one has a strong incentive to confess and give testimony (including [[Perjury|''false'' testimony]]) against the innocent.{{citation needed|date=October 2015}}

A 2009 study by the European Association of Law and Economics observed that innocent defendants are consistently more likely than guilty defendants to reject otherwise-favorable pleas proposals, even when theoretically disadvantageous to do so, because of perceived unfairness, and would do so even if the expected sanction would be worse if they proceeded to trial. The study concluded that "[t]his somewhat counterintuitive 'cost of innocence', where the preferences of innocents lead them collectively to fare worse than their guilty counterparts, is further increased by the practice of imposing much harsher sentences at trial on defendants who contest the charges. This '[[trial penalty]]' seeks to facilitate guilty pleas by guilty defendants [... and ironically] disproportionately, collectively, penalizes innocents, who reject on fairness grounds some offers their guilty counterparts accept."<ref name="GAT_2012">{{cite journal|last1=Avishalom|first1=Tor|last2=Gazal-Ayal|first2=Oren|last3=Garcia|first3=Stephen M.|title=Fairness and the Willingness to Accept Plea Bargain Offers|journal=Journal of Empirical Legal Studies|date=March 2010|volume=7|issue=1|pages=97–116|doi=10.1111/j.1740-1461.2009.01171.x|url=http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1834&context=law_faculty_scholarship}}</ref>

The extent to which innocent people will accept a plea bargain and plead guilty is contentious and has been subjected to considerable research. Much research has focused on the relatively few actual cases where innocence was subsequently proven, such as successful appeals for murder and rape based upon [[DNA evidence]], which tend to be atypical of trials as a whole (being by their nature only the most serious kinds of crime). Other studies have focused on presenting hypothetical situations to subjects and asking what choice they would make. More recently some studies have attempted to examine actual reactions of innocent persons generally, when faced with actual plea bargain decisions. A study by Dervan and Edkins (2013) attempted to recreate a real-life controlled plea bargain situation, rather than merely asking theoretical responses to a theoretical situation—a common approach in previous research.<ref name="DervanEdkins2013">{{cite journal |last1=Dervan |first1=Lucian E. |last2=Edkins |first2=Vanessa A. |year=2013 |title=The Innocent Defendant's Dilemma: An Innovative Empirical Study of Plea Bargaining's Innocence Problem |journal=[[Journal of Criminal Law & Criminology]] |volume=103 |issue=1 |pages=1 |url=http://scholarlycommons.law.northwestern.edu/jclc/vol103/iss1/1 |access-date=28 June 2017 |url-status=live |archive-url=https://web.archive.org/web/20170703205319/http://scholarlycommons.law.northwestern.edu/jclc/vol103/iss1/1/ |archive-date=3 July 2017 }}</ref> It placed subjects in a situation where an accusation of [[academic fraud]] (cheating) could be made, of which some subjects were in fact by design actually guilty (and knew this), and some were innocent but faced seemingly strong evidence of guilt and no verifiable proof of innocence. Each subject was presented with the evidence of guilt and offered a choice between facing an academic ethics board and potentially a heavy penalty in terms of extra courses and other forfeits, or admitting guilt and accepting a lighter "sentence". The study found that as expected from court statistics, around 90% of accused subjects who were actually guilty chose to take the plea-bargain and plead guilty. It also found that around 56% of subjects who were actually innocent (and privately knew it) also take up the plea-bargain and plead guilty, for reasons including avoiding formal quasi-legal processes, uncertainty, possibility of greater harm to personal future plans, or deprivation of home environment due to remedial courses. The authors stated:<ref name="DervanEdkins2013" />

{{quote|Previous research has argued that the innocence problem is minimal because defendants are risk-prone and willing to defend themselves before a tribunal. Our research, however, demonstrates that when study participants are placed in real, rather than hypothetical, bargaining situations and are presented with accurate information regarding their statistical probability of success, just as they might be so informed by their attorney or the government during a criminal plea negotiation, innocent defendants are highly risk-averse.}}

More pressure to plea bargain may be applied in weak cases (where there is less certainty of both guilt and jury conviction) than strong cases. Prosecutors tend to be strongly motivated by conviction rates, and "there are many indications that prosecutors are willing to go a long way to avoid losing cases, [and that] when prosecutors decide to proceed with such weak cases they are often willing to go a long way to assure that a plea bargain is struck".<ref name="GAT 2012">{{cite journal|last1=Gazal-Ayal|first1=Oren|last2=Tor|first2=Avishalom|title=The Innocence Effect|journal=Duke Law Journal|date=November 2012|volume=62|issue=2|pages=339–401|jstor=23364853}}</ref> Prosecutors often have great power to procure a desired level of incentive, as they select the charges to be presented. For this reason,<ref name="GAT 2012" />

{{quote|[P]lea bargains are just as likely in strong and weak cases. Prosecutors only need to adjust the offer to the probability of conviction in order to reach an agreement. Thus, weaker cases result in more lenient plea bargains, and stronger ones in relative harshness, but both result in an agreement. [... W]hen the case is weak, the parties must rely on charge bargaining ... But [charge bargaining] is hardly an obstacle. Charge bargaining in weak cases is not the exception; it is the norm all around the country. Thus, even if the evidence against innocent defendants is, on average, weaker, the likelihood of plea bargains is not dependent on guilt.}}

Another situation in which an innocent defendant may plead guilty is in the case of a defendant who cannot raise money for a [[bail bond]], and who is being held in custody in a jail or detention facility. Because it may take months, or even years, for criminal cases to come to trial or even indictment in some jurisdictions, an innocent defendant who is offered a plea bargain that includes a sentence of less time than they would otherwise spend in jail awaiting an indictment or a trial may choose to accept the plea arrangement and plead guilty.<ref>{{Cite news |url=https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html |title=The Bail Trap |last=Pinto |first=Nick |date=13 August 2015 |work=Sunday Magazine |publisher=New York Times |url-status=live |archive-url=https://web.archive.org/web/20170112030744/https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html |archive-date=12 January 2017 }}</ref>