Bargained Justice: The Rise of False Testimony for False Pleas
In 1783, an English court wrote: “[A] confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape . . . that no credit ought to be given to it.” Yet today over 97% of all convictions in the United States result from plea bargaining. In 2017, South Korea renewed a decadesold debate over whether to formally recognize plea bargaining, and, in 2018, Japan’s new formal plea bargaining system took effect. The working assumption in each case is that, absent a threat of violence or mental coercion, innocent people do not plead guilty and plea bargaining efficiently renders justice. With the assistance of the Japan Foundation Center for Global Partnership and colleagues in Japan and South Korea, we conducted laboratory experiments to test those assumptions. Do the innocent plead guilty? Do the accused falsely implicate the innocent? If so, are additional safeguards necessary to minimize that risk? The data suggests that basic human tendencies, across cultures, run counter to the assumptions underlying plea bargaining. The data suggest that the innocent plead guilty, and that it happens at rates that should lead to a re-evaluation of the risks and benefits of plea bargaining, as practiced in the United States, in Japan, and under consideration in South Korea.
Recommended Citation: Andrew M. Pardieck, Vanessa A. Edkins, & Lucian E. Dervan, Bargained Justice: The Rise of False Testimony for False Pleas, 44 Fordham Int'l L.J. 469 (2020).