Rational Expectations of Leniency: Implicit Plea Agreements and the Prosecutor's Role as a Minister of Justice

By Mazur, Eli Paul | Duke Law Journal, February 2002 | Go to article overview

Rational Expectations of Leniency: Implicit Plea Agreements and the Prosecutor's Role as a Minister of Justice


Mazur, Eli Paul, Duke Law Journal


INTRODUCTION

Prosecutors routinely acquire the incriminating testimony of co-defendants, co-conspirators, informants, jailhouse snitches, and witnesses through the use of plea bargains and inducements. (1) The Supreme Court has explicitly recognized that plea bargains and inducements create motivations to lie. (2) Nevertheless, the function and history of the plea bargain is ingrained in our system of justice, and courts consistently hold that the existent procedural safeguards are sufficiently stringent to protect the accused from any unfair prejudice created by bargained-for testimony. (3)

The accused is protected by various procedural mechanisms that expose the existence of bargained-for testimony and allow the accused to attack its credibility. (4) The negotiation, creation, and performance of plea agreements and inducements are governed by rules of criminal procedure and informed by rules of professional conduct. (5) For instance, a plea bargain between the state and a testifying witness is discoverable, (6) many plea bargains are written, and the prosecution has an ethical and legal duty to disclose the agreement for its exculpatory value. (7) Moreover, all plea agreements are subject to the scrutiny of a properly instructed jury and zealous cross-examination by defense counsel. (8) These procedural safeguards exist to promote justice and accuracy in the courtroom. (9) They recognize that when a prosecutor offers leniency or money in exchange for incriminating testimony, there is a tremendous incentive for the witness to fabricate, self-exculpate, and cooperate. (10)

However, these safeguards fail to protect the rights of the accused and the integrity of the court when a witness cooperates with the prosecution but is not a party to a formal plea agreement. Through affirmative behavior, office policy, or a past course of conduct, a prosecutor can create a "rational expectation of leniency" (11) within the mind of a testifying witness. This rational expectation of leniency spawns the same dangers to the veracity of testimony and the credibility of witnesses as do traditional plea bargains. (12)

The stringent procedural safeguards governing plea bargains, however, are relaxed and rendered ineffective when the prosecution and the testifying witness do not reach a formal agreement. (13) Cross-examination and jury instructions, as presently used, fail to apprise the jury of the equally pervasive motivations to fabricate and self-exculpate possessed by witnesses who testify with a rational expectation of leniency instead of a formal plea agreement. (14)

Experience and social science suggest that a witness's propensity to fabricate is just as compelling whether he has a rational expectation of leniency or a formal agreement promising leniency. (15) The witness who testifies without a formal agreement is acutely aware of the heightened importance of the substance, power, and incriminating nature of his or her testimony, because his or her liberty might be contingent on the success or failure of the prosecution's case. In addition, jurors often give more weight and credibility to accomplice testimony where no formal plea agreement exists, because the testifying accomplice appears to waive his or her right against self-incrimination and to testify out of a desire for absolution and repentance. (16) Therefore, courts and prosecutors should recognize that the dangers posed by traditional plea bargains are equally pervasive when a witness has a rational expectation of leniency attributable to the prosecution. (17)

This Note shows that rational expectations of leniency implicate the same doubts about the veracity of testimony as traditional plea bargains. Furthermore, it argues that prosecutors, as ministers of justice entrusted to protect the procedural rights of the accused, (18) violate their ethical duties when they engage in implicit plea bargaining because such conduct circumvents and renders ineffective the procedural safeguards erected to protect the accused. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Rational Expectations of Leniency: Implicit Plea Agreements and the Prosecutor's Role as a Minister of Justice
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.