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Gauging the Strength of Evidence Prior to Plea Bargaining: The Interpretive Procedures of Court-Appointed Defense Attorneys

Published online by Cambridge University Press:  27 December 2018

Debra S. Emmelman
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Abstract

An important debate among court observers is whether plea bargaining undermines the ideals of justice. This article presents findings that may rec-oncile some inconsistent research conclusions. It describes how, prior to plea bargaining, one group of court-appointed defense attorneys gauges the strength of evidence through a tacit, taken-for-granted process that emulates trial proceedings: based on their understanding of evidence in the legal community, defenders imagine a courtroom dialogue wherein the prosecution and defense take turns presenting their cases in front of a judge and jury. At issue throughout the dialogue is whether or to what extent information is suffident, legal, and persuasive enough to convict the defendant. Because the process is part of the defenders' ongoing and unspoken daily routines, it may elude unsuspecting investigators. Ironically, this means not only that some analysts may inappropriately conclude that legal ideals play no role in plea bargaining but also that others may ingenuously assume that such behavior is more ethical than it actually is.

Type
Articles
Information
Law & Social Inquiry , Volume 22 , Issue 4 , Fall 1997 , pp. 927 - 955
Copyright
Copyright © American Bar Foundation, 1997 

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References

Alschuler, Albert W. 1975. The Defense Attorney's Role in Plea Bargaining. Yale Law Journal 84: 1179–1314.Google Scholar
Alschuler, Albert W. 1986. Personal Failure, Institutional Failure, and the Sixth Amendment (paper presented at symposium, Effective Assistance of Counsel for the Indigent Criminal Defendant: Has the Promise Been Fulfilled? New York University, 23 March 1985). Review of Law and Social Change 14: 149–56.Google Scholar
Berger, Peter L., and Luckmann, Thomas. 1967. The Social Construction of Reality. New York: Doubleday.Google Scholar
Black, Donald. 1993. The Social Structure of Right and Wrong. San Diego: Academic Press.Google Scholar
Black, Henry Campbell. 1968. Block's Law Dictionary. 4th ed. St. Paul, Minn.: West Publishing.Google Scholar
Blumberg, Abraham. 1967. The Practice of Law as a Confidence Game: Organizational Co-optation of a Profession. Law and Society Review 4: 15–39.Google Scholar
Brannigan, Augustine, and Lynch, Michael. 1987. On Bearing False Witness: Credibility as an Interactional Accomplishment. Journal of Contemporary Ethnography 16, no. 2 (July): 115–46.Google Scholar
Burke, Kenneth. 1989. The Heritage of Sociology: Kenneth Burke on Symbols and Society. ed. Gusfield, Joseph R. Chicago: University of Chicago Press.Google Scholar
Cicourel, Aaron. 1968. The Social Organization of Juvenile Justice. New York: Crane, Russak.Google Scholar
Cicourel, Aaron. 1974. Cognitive Sociology. New York: Free Press.Google Scholar
Cloyd, Jerald Wray. 1975. The Ideals of Justice and the Practical Organizational Contingencies Affecting Criminal Cases Involving Intoxicants. Ph.D. diss., University of California, San Diego .Google Scholar
Cooney, Mark. 1994 Evidence as Partisanship. Law and Society Review 28, no. 4: 833–58.Google Scholar
Eisenstein, James, and Jacob, Herbert. 1977. Felony Justice. Boston: Little, Brown.Google Scholar
Emmelman, Debra S. 1994. The Effect of Social Class on the Adjudication of Criminal Cases: Class-Linked Behavior Tendencies, Common Sense, and the Interpretive Procedures of Court-Appointed Defense Attorneys. Symbolic Interaction 17, no. 1: 1–20.Google Scholar
Emmelman, Debra. 1996. Trial by Plea Bargain: Case Settlement as a Product of Recursive Decisionmaking. Law and Society Review 30, no. 2: 335–60.Google Scholar
Farrell, Ronald A. 1971. Class Linkages of Legal Treatment of Homosexuals. Criminology 9: 49–68.Google Scholar
Frohmann, Lisa. 1991. Discrediting Victims' Allegations of Sexual Assault: Prosecutorial Accounts of Case Rejections. Social Problems 38, no. 2: 213–26.Google Scholar
Garfinkel, Harold. 1967. Studies in Ethnomethodology. Englewood Cliffs, N.J.: Prentice-Hall.Google Scholar
Geertz, Clifford. 1983. Local Knowledge: Further Essays in Interpretive Anthropology. New York: Basic Books.Google Scholar
Glaser, Barney, and Strauss, Anselm. 1967. The Discovery of Grounded Theory. Chicago: Aldine Publishing.Google Scholar
Guggenheim, Martin. 1986. Divided Loyalties: Musings on Some Ethical Dilemmas for the Institutional Criminal Defense Attorney (paper presented at symposium, Effective Assistance of Counsel for the Indigent Criminal Defendant: Has the Promise Been Fulfilled? New York University, 23 March 1985). Review of Law and Social Change 14: 13–21.Google Scholar
Gusfield, Joseph R. 1981. The Culture of Public Problems. Chicago: University of Chicago Press.Google Scholar
Gusfield, Joseph R. 1989. Introduction to The Heritage of Sociology: Kenneth Burke on Symbols and Society , ed. Gusfield, Joseph R. Chicago: University of Chicago Press.Google Scholar
Hall, Donald. 1975. The Role of the Victim in the Prosecution and Disposition of a Criminal Case. Vanderbilt Law Review 28: 931–85.Google Scholar
Heumann, Milton. 1975. A Note on Plea Bargaining and Case Pressure. Law and Society Review 9: 515–28.Google Scholar
Holmes, Malcolm D., Daudistel, Howard C., and Farrell, Ronald A. 1987. Determinants of Charge Reductions and Final Dispositions in Cases of Burglary and Robbery. Journal of Research in Crime and Delinquency 24: 233–54.Google Scholar
Holstein, James A. 1993. Court-Ordered Insanity. New York: Aldine De Gruyter.Google Scholar
Homant, Robert J., and Kennedy, Daniel B. 1985. Determinants of Expert Witnesses' Opinions in Insanity Defense Cases. In Courts and Criminal Justice: Emerging Issues, ed. Talarico, Susette M., 57–79. Beverly Hills: Sage Publications.Google Scholar
Kalven, Harry Jr., and Zeisel, Hans. 1976. The American Jury. Chicago: University of Chicago Press.Google Scholar
LaFree, Gary D. 1985. Official Reactions to Hispanic Defendants in the Southwest. Journal of Research in Crime and Delinquency 22, no. 3 (August): 213–37.Google Scholar
Lerner, Benjamin. 1986. A Response (paper presented at symposium, Effective Assistance of Counsel for the Indigent Criminal Defendant: Has the Promise Been Fulfilled? New York University, 23 March 1985). Review of Law and Social Change 14: 101–4.Google Scholar
Lester, Marilyn, and Hadden, Stuart C. 1980. Ethnomethodology and Grounded Theory Methodology: An Integration of Perspective and Method. Urban Life 9: 3–33.Google Scholar
Lizotte, Alan J. 1978. Extra-Legal Factors in Chicago's Criminal Courts: Testing the Conflict Model of Criminal Justice. Social Problems 25, no. 5 (June): 564–80.Google Scholar
Loeske, Donileen R. 1992. The Battered Woman and Shelters: The Social Construction of Wife Abuse. New York: State University of New York Press.Google Scholar
Maroules, Nicholas. 1986. The Social Organization of Sentencin. In Alaska's Superior Courts. Ph.D. diss., University of California, San Diego .Google Scholar
Mather, Lynn M. 1979. Plea Bargaining or Trial? Lexington, Mass.: Lexington Books.Google Scholar
Matoesian, Gregory M. 1995. Language, Law, and Society: Policy Implications of the Kennedy Smith Rape Trial. Law and Society Review 29, no. 4: 669–701.Google Scholar
Maynard, Douglas W. 1982. Person Descriptions in Plea Bargaining. Semiotica 42, nos. 2/4: 195–213.Google Scholar
Maynard, Douglas W. 1984. Inside Plea Bargaining. New York: Plenum Press.Google Scholar
Maynard, Douglas W. 1988. Narratives and Narrative Structure in Plea Bargaining. Law and Society Review 22: 449–81.Google Scholar
McDonald, William F. 1985. Plea Bargaining: Critical Issues and Common Practices. Washington, D.C.: U.S. Dept. of Justice.Google Scholar
Mehan, Hugh, and Wood, Houston. 1975. The Reality of Ethnomethodology. New York: John Wiley and Sons.Google Scholar
Miller, Frank. 1970. Prosecution: The Decision to Charge a Suspect with a Crime. Boston: Little, Brown.Google Scholar
Myers, Martha A., and Hagan, John. 1979. Private and Public Troubles: Prosecutors and the Allocation of Resources. Social Problems 26: 439–51.Google Scholar
Nelson, Meredith Anne. 1988. Quality Control for Indigent Defense Contracts. California Law Review 76: 1147–83.Google Scholar
Neubauer, David. 1974. Criminal Justice in Middle America. Morristown, N.J.: General Learning Press.Google Scholar
O'Barr, William M. 1982. Linguistic Evidence: Language, Power, and Strategy in the Courtroom. New York: Academic Press.Google Scholar
Platt, Anthony, and Pollock, Randi. 1974. Channeling Lawyers: The Careers of Public Defenders. Issues in Criminology 9: 1–31.Google Scholar
Pollner, Melvin. 1974. Mundane Reasoning. Philosophy of the Social Sciences 4: 35–54.Google Scholar
Rabinowitz, Martin J. 1985. The Child as Eyewitness: An Overview. Social Action and the Law ll.no. 1: 5–10.Google Scholar
Radelet, Michael L., and Pierce, Glenn L. 1985. Race and Prosecutorial Discretion in Homicide Cases. Law and Society Review 19, no. 4: 587–621.Google Scholar
Reskin, Barbara F., and Visher, Christy A. 1986. The Impact of Evidence and Extra-Legal Factors in Jurors' Decisions. Law and Society Review 20, no. 3: 423–38.Google Scholar
Reston, James Jr. 1995. Galileo. New York: HarperPerennial.Google Scholar
Rosett, Arthur, and Cressey, Donald. 1976. Justice by Consent. New York: J. B. Lippincott.Google Scholar
Sanders, Andrew. 1985. Class Bias in Prosecutions. Howard Journal of Criminal Justice 24, no. 3 (August): 176–99.Google Scholar
Sanger, William W. 1974. The History of Prostitution. New York: AMS Press.Google Scholar
Schutz, Alfred. 1962. Collected Papers. Vol. 1. The Hague: Martinus Nijhoff.Google Scholar
Skolnick, Jerome. 1967. Social Control in the Adversary System. Journal of Conflict Resolution 11: 52–70.Google Scholar
Stanko, Elizabeth Anne. 1981. The Impact of Victim Assessment on Prosecutors' Screening Decisions: The Case of the New York County District Attorney's Office. Law and Society Review 16, no. 2: 225–29.Google Scholar
Sudnow, David. 1965. Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office. Social Problems 2: 255–75.Google Scholar
Swigert, Victoria Lynn, and Farrell, Ronald A. 1977. Normal Homicides and the Law. American Sociological Review 42: 16–32.Google Scholar
Weber, Max. 1958. The Protestant Ethic and the Spirit of Capitalism. Introd. Anthony Giddens. New York: Charles Scribner's Sons.Google Scholar
Weber, Max. 1979. From Max Weber: Essays in Sociology. Trans, and ed. Gerth, H. H. and Mills, C. Wright. New York: Oxford University Press.Google Scholar
Wiseman, Jacqueline P. 1979. Stations of the Lost. Chicago: University of Chicago Press.Google Scholar