Guilty Pleas or Trials: Which Does the Barrister Prefer?

By Tague, Peter W. | Melbourne University Law Review, April 2008 | Go to article overview

Guilty Pleas or Trials: Which Does the Barrister Prefer?


Tague, Peter W., Melbourne University Law Review


[Barristers in England and attorneys in the United States have been upbraided for pursuing their interests to their clients' detriment in recommending guilty pleas over trials. While this accusation against American attorneys could be true since their incentives are sometimes skewed to favour guilty pleas, it is not accurate with respect to barristers in England. This is because the latter's selfish incentives--to maximise income and avoid sanction--incline them to prefer trials over guilty, pleas. In Melbourne and Sydney, barristers have never been similarly accused. Indeed, the topic has not been studied. Based on interviews with legal professionals in those cities, this article concludes that, as in England. barristers' incentives lead them to prefer trials. Thus, when barristers in Melbourne or Sydney recommend a guilty plea, they are arguably thinking of the defendant's interest rather than their own.]

CONTENTS

I      Introduction
II     Temptations
III    Maximising Compensation
          A  Obtaining Briefs
          B  Solicitors' Expectations about Barristers' Performance
          C  Fees
          D  Cracked Trials
IV    Sanctions Deterring Self-Interested Behaviour
V     Trials when Guilty Pleas Are Appropriate
VI    Conclusion

I INTRODUCTION

Many criminal defendants plead guilty at or shortly before trial. Their reasons vary. A defendant, for example, may have exhausted the resources that they can expend to fight the charge(s). Another, awash with remorse, might finally admit culpability. A third might buckle from the tension while awaiting the case's resolution. Another might learn that a witness previously expected not to testify against them will do so. A fifth, despite having adamantly insisted upon a trial, might plead guilty on the strong advice of their legal advocate. (1) It is this last defendant, and their legal advocate, who are the subjects of this article.

What led the advocate to persuade the fifth defendant to change their plea to guilty? Were the advocate's motives paternalistic in that the defendant had to be convinced that a jury would surely convict, with the repercussion of a much harsher sentence than that which would follow a guilty plea? (2) Or was the advocate covertly advancing their own personal interests without regard to the defendant's?

Overlooking that first motive, bewildered defendants and incensed critics have accused barristers in England's Crown Court and attorneys in the United States of manipulating defendants into pleading guilty in order to satisfy advocates' own interests, even at their clients' expense. (3) If this accusation were true, advocates would be betraying their clients, and plea negotiations would be a sham given that the advocate would be acting as the prosecutor's covert ally rather than as the defendant's protector.

While this accusation is false when aimed at barristers in England, (4) it could be accurate when applied to attorneys in certain jurisdictions in the US who are chosen to represent defendants in publicly-funded cases. (5) As no advocate would admit to sacrificing their client to pursue their own interests, the question is one which can only be approached by examining the advocate's incentives. If the advocate thought only of themself, would they prefer a guilty plea or a trial? In England's Crown Court and in some but not all jurisdictions in the US, advocates' incentives incline them to prefer a trial. It follows, arguably, that when a barrister in England recommends a guilty plea, the barrister must believe that that plea is the better choice for the defendant since it is not personally the more advantageous choice. In recommending a guilty plea, then, the barrister properly subordinates their interests to those of the client.

Intriguingly, barristers in Melbourne and Sydney have escaped the criticism levelled at their counterparts in England and the US. In conversations with judges, barristers, solicitors, academics and others in those two cities, (6) no-one accused them of covertly soliciting guilty pleas to further their own ends. …

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