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

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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. …