Academic journal article Trends & Issues in Crime and Criminal Justice

Plea Negotiations: An Empirical Analysis

Academic journal article Trends & Issues in Crime and Criminal Justice

Plea Negotiations: An Empirical Analysis

Article excerpt

Across Australian criminal jurisdictions, the most frequent method of case finalisation is not a contested trial, but rather by an accused entering a plea of guilty. In this context, negotiated guilty pleas, commonly referred to as 'plea bargaining', 'plea negotiations', 'settlements' and 'early resolutions', have taken on a more prominent and significant role in the delivery of modern day justice.

Negotiated guilty pleas are the result of an agreement reached between the prosecutor and the accused (usually through their legal representative) that may involve-among other outcomes- alterations to the charges (number, severity and structure), an agreement as to the case facts to be put before the court, and/or an agreement on the Crown's sentencing submission, in exchange for the accused forgoing their right to a contested trial and entering a guilty plea. These agreements are justified on the grounds of court efficiency and reducing court backlogs through the speedier resolution of cases, while still ensuring that the public interest is served through a timely conviction-albeit this conviction may not reflect the full extent or severity of the offending conduct.

In Australia, plea negotiations are an under-examined topic resulting in a partial and often distorted understanding of the process by those outside the legal community. Across Australian jurisdictions, no official data are available that detail the frequency and outcomes of plea negotiations. While it is possible to monitor the rates of guilty pleas-although this is becoming increasingly more difficult- there is a limited capacity to ascertain what role plea negotiations may have played in facilitating these pleas. In addition, little information is publicly available about negotiations, including: what is discussed, what the outcomes may entail, how and why negotiations occur, and the processes involved. As a consequence, criminal matters-including those involving serious misconduct-are resolved with limited external understanding of the process.

This paper is drawn from a multi-methods study documenting current plea negotiation practices in the state of Victoria-the Negotiating Guilty Pleas Project. The project was funded by a Criminology Research Grant (53/13-14) and is the first Australian study to develop a dataset of negotiated guilty pleas through a comprehensive analysis of de-identified Victoria Legal Aid (VLA) case files, in-depth interviews, group discussions and stakeholder consultations with members of the Victorian legal community across six locations (Melbourne, Shepparton, Gippsland, Geelong, Ballarat and Dandenong). Specifically, this paper focuses on the findings of the study that shed light on the frequency, timing, processes and outcomes of plea negotiations. It is hoped this paper will improve understanding of plea negotiations in Victoria and contribute to any reform process that may eventuate from this or other reports informed by the study.

Aims and method

The Negotiating Guilty Pleas Project aimed to provide new information about plea negotiations in Victoria, and Australia more broadly, building on the small body of Australian research on negotiated guilty pleas. The project sought to do this by providing an empirical account of current plea negotiation practices in Victoria, including documenting the frequency of plea negotiations, identifying the different forms of plea negotiations and the common outcomes of negotiations, as well as discussing the processes involved in counsel reaching an agreement.

The study involved a three phase qualitative and quantitative methodology. Phase 1 involved developing a dataset of negotiated guilty pleas through a comprehensive mixed qualitative and quantitative analysis of 50 de-identified VLA case files which had been resolved by guilty plea.

One of the most significant contributions of the study came from the ability to access and analyse de-identified case files. …

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