the effect of evidentiary factors on charge reduction

Journul of Criminal Justice, Vol. I I. pp. 525-537 (1983) Pergamon Press, Printed in U.S.A

0017-2352/X3 $3.00 + .OO Copyright 0 lY83 Pcrgamon Prcsa Ltd.

THE EFFECT OF EVIDENTIARY FACTORS ON CHARGE REDUCTION

KENNETH ADAMS

School of Criminal Justice State University of New York at Albany

Albany, New York 12222

ABSTRACT

The practice by prosecutors of basing guilty plea concessions on evidentiary considerations is highly

controversial. Observational field studies suggest that this is a common practice and that there is a strong inverse relationship between the strength of the prosecution’s case and concessions that a defendant is offered. However, there has yet to be an explicit test of this hypothesis. This study

examines the relationship of evidentiary factors to charge reduction using data from the Prosecutor’s Management Information System (PROMIS) for the District of Columbia. The analysis indicates that the expected relationship does exist but is not as strong as some suggest and varies by the type of offense. It also suggests that this practice is part of a routine adjudicatory procedure, particularly for property crimes, and that there is a need to scrutinize more closely the fact-finding function of the

guilty plea.

It is widely acknowledged that the prosecutor is among the most powerful officials in the criminal justice system. In part this results from the functions of the office, such as charging, dismissal, and plea negotiation, and the critical impact these decisions have on defendants. More significantly, however, prosecutors differ from other criminal justice officials in that their decision making is traditionally vested with a broader range of explicitly acknowledged and carefully pro- tected discretion. Consequently, prosecutors routinely choose among an array of decision alternatives with very little possibility for external supervision or review. These factors establish the prosecutor as the domi-

nant figure in the middle stages of the criminal justice process.

Notwithstanding the importance of the office, there has been relatively little empirical research on the prosecutor’s role as decision maker (Gottfredson and Gottfred- son, 1980). Recently, increasing empirical scrutiny has been given to the use of guilty pleas (Heumann, 1975; Jones, 1978; Nar- duli, 1978; Feeley, 1979). Such research has sought to analyze an observed preference for guilty pleas over trials in the adjudicatory process by explaining why the guilty plea is used so extensively. It has not, however, investigated the procedures for securing guilty pleas. Specifically, the vari-

525

526 KENNETH ADAMS

ous information inputs which condition guilty pleas have yet to be analyzed. Given that the guilty plea is currently the dominant method for criminal adjudication, and will probably remain so in the future, research on its operation can make a substantial contribution to our understanding of the criminal justice process.

Of the various procedures used to secure a guilty plea, the most controversial are those involving explicit concessions from the prosecutor. Newman (1966) has noted four types of concessions prosecutors typically make: charge reduction, charge dismissal, sentence promise, and avoidance of prosecution under specialized statutes. Of these, Newman has indicated that charge reduction is the concession most sought after by defendants because it results in a less serious criminal record and affects the statutory range of penalties that may be applied. This study focuses on charge reduction as a critical concession made in the guilty plea process. The specific issue to be addressed is the influence of evidentiary inputs on the charge reduction decision.

EVIDENTIARY FACTORS AND PROSECUTORIAL CONCESSIONS

Numerous constitutional and public policy issues have been raised concerning specific operations of the guilty plea (Harvard Law Review, 1970; Newman and NeMoyer, 1970). One of the major issues is the contention that many innocent defendants are convicted through the widespread use of this relatively quick and informal process (Enker, 1967). This statement, however, must be qualified with respect to a particular standard for guilt and innocence, and the one that is usually advanced is the trial standard of proof beyond a reasonable doubt. That guilty plea procedures fall short of demonstrating that this standard is met has generated much controversy. Although the Supreme Court has condoned the use of a lesser evidentiary standard for guilty pleas as constitutionally permissible (North C’uro- fina v. Alford, 400 US 25, 1971), arguments

continue over this practice. Public policy issues are still debated over the levels of conduct that should be expected of criminal justice officials as they relate to the often conflicting goals of the criminal justice system.

In general, four lines of argument can be identified. The first emphasizes that prosecutors offer better concessions in weaker cases to induce potentially innocent defendants to plead guilty and waive their constitutional right to a trial (Harvard Law Review, 1970). It is argued that this practice increases the possibility that defendants will be unjustly convicted and creates a situation wherein the greater the question about a defendant’s guilt, the more a prosecutor will seek to avoid having the issue decided by the courts. Further, it is argued that this practice vividly demonstrates the discrepancy between the law on the books and the law in action. Such discrepancy can lead to widely different treatment for similar defendants (Alschuler, 1968), and it can also create a disrespect for the law and reduce the legitimacy of the legal system (Harvard Law Review, 1970). As such, it is argued that the prosecutor, who has a sworn obliga- tion to uphold our system of justice, is actually undermining the ideals which are its very foundation. From this perspective, prosecutorial concessions based on evidentiary considerations should not be permitted.

In contrast, the second line of argument emphasizes that the prosecutor has a responsibility to see that the law is enforced. but this responsibility is hampered by a continual shortage of resources, and court- room rules and procedures that favor the defendant (Grosman, 1970). Also, some studies suggest that by the time the plea bargaining stage has been reached almost all of the innocent defendants have been eliminated (Heumann, 1978; Mather, 1979). Hence it is argued that prosecutors must resort to concessions out of necessity, and those based on evidentiary considerations only increase the efficiency of the conviction process for defendants who are factually guilty. Also. it is noted that as the efficiency of the legal system increases so does soci-

The Effect of Evidentiary Factors on Charge Reduction 527

ety’s attempt at controlling criminal activity. Thus, from this perspective, until legal procedures are modified and more resources are provided, prosecutorial concessions, including those based on evidentiary considerations, are necessary to keep the system operating and ensure that the guilty are punished.

The third line of argument emphasizes that the task of proving guilt or innocence is not a simple one. Statutes are broadly and vaguely written, and may be difficult to apply to the actual circumstances of a particular offense. Thus it is argued that concessions can provide a means of indi- vidualizing justice. For example, one com- mentator has distinguished between problems in proving guilt that are concerned with the behavioral elements of the offense (i.e., whether the defendant acted in a particular way) and problems in proving the subjective elements of the offense (i.e., whether the defendant had the requisite intent) (Enker, 1967). He then argues that in the latter case, where the subjective elements are in question, concessions can be a useful means of achieving a more just outcome. From this perspective, concessions based on evidentiary considerations are a desirable practice under certain circumstances.

Finally, the fourth line of argument emphasizes that issues concerning the operation of the guilty plea must be analyzed with reference to the working environment of the courts (Carter, 1974; Rosett and Cressey, 1976). It is pointed out that the relationship between prosecution and defense is usually one of cooperation as well as conflict. At trial both sides are faced with the human vagaries of judges, juries, and witnesses, so that any attempt to demonstrate convinc- ingly either guilt or innocence is problem- atic. The guilty plea is preferred because it is a way of avoiding the uncertainty of trial, and concessions arise as a way of reaching a mutually satisfying compromise. Given this, it is argued that concessions of one form or another will always be present, and these concessions will necessarily be based on estimates of the probabilities of various trial outcomes. From this perspective, one must

seriously question the efficacy of any attempt to eliminate concessions that are based on evidentiary considerations.

In sum, it can be seen that a number of complex and unresolved issues are involved in the practice of basing guilty plea concessions on evidentiary considerations. While these issues may on occasion reach constitutional dimensions, controversial public policy decisions are clearly involved. To the extent that research demonstrates or fails to demonstrate a relationship between evidentiary inputs and guilty plea concessions, prosecutorial practice in an area of discre- tionary decision making is highlighted. Such research can serve as the stimulus for further debate as well as provide information that may be useful in attempts to resolve this issue.

PREVIOUS RESEARCH

A general review of the literature would indicate that there has been a considerable amount of observational field research on the prosecutor’s role as decision maker. This research has detailed the types of decisions that the prosecutor makes and the various factors that are involved in the decision-making process. These studies have provided a sound description of the prosecutor’s activities within the criminal justice system.

One specific observation that recurs in many of these studies is that the strength or weakness of the state’s case is a major factor in the plea negotiation process. Using a marketplace analogy, prosecutors are often said to “discount” their current rates of concession for guilty pleas based on the weight of the evidence. As early as 1929 it was reported that prosecutors supported the notion that “half a loaf is better than none” (Moley, 1929; cited in Miller, McDonald, and Cramer, 1978). Subsequent investiga- tions have corroborated this observation. For example, a survey of prosecutors in 1964 reported that the vast majority of respondents considered the stength of the state’s case to be an important factor in plea

528 KENNETH ADAMS

negotiation (Vetri, 1964). A later study based on numerous interviews with prosecutors concluded that the strength of the state’s case was the most importuntf’actor in the bargaining process (Alschulcr, 196X). Finally, in a more recent nationwide study of plea bargaining practices, interviews again revealed that cvidentiary considerations were of central importance in the plea negotiation process (Miller, McDonald. and Cramer. 1978).

Although these studies indicate that there is a strong inverse relationship between the strength of the prosecution’s case and the degree of concession that is offered. this hypothesis has not been tested explicitly. The major limitation of all these studies is their lack of analytical design. Observa- tional studies are subject to limited reliabil- ity. and it is possible for information collected in this method to prcscnt a biased description of the actual situation. These problems raise questions about the validity of the data. thereby affecting the degree of confidence with which the conclusions can be accepted.

However, since a number of similar studies report the same finding. it appears that there is face validity to these data. Yet there still remains the problem of putting these observations into an analytical perspective. Typical observational data arc unable to provide precise measurements of association. and by themsclvcs are mostly inadequate for the “informed” development of public policy. While it is useful to know that cvidentiary inputs arc given some consideration in the guilty plea process, it is more useful to know how strongly evidentiary factors arc related to prosccutorial concessions. and how this relationship com- pares to that of other important variables.

Two studies have attempted to analyze quantitative data on the plea negotiation process (La Goy, Senna. and Siegel, 1076; McDonald. Cramer, and Rossman, 1980). Both used a simulation technique to identify the information that prosecutors use in making their decisions. They found that evidentiary factors were important information items in that they were considered early

in the decision process. However, these simulation studies suffer from a number of limitations. First, there is the question of external validity and whether simulations can be made realistic enough to bc applicable to real-world situations. Second. this type of study can only concern itself with a small number of situations about which decisions are to be made. This is at once a strength and a weakness, since it allows for the information items to be carefully tai- lored to a particular instance, but it does not allow for the type of numerical results that are ncedcd for addressing broad public policy issues.

Thus. the available evidence indicates that cvidentiary considerations arc an important factor in prosecutorial concessions, but this evidence suffers from a number of limitations. To date, no attempt has been made to assess the relationship between evident&-y inputs and prosecutorial concessions in terms of the daily operations of the criminal justice system. The significance of such an effort can be illustrated by para- phrasing an earlier student of prosecutorial discretion: let us see whether selectivity in prosecution is wild theory. or just a theory. or an empirically verifiable fact (Snyder, 1939). Despite the decades which have passed since this directive was issued, the greater part of the research effort still lies ahead.

DESIGN

The data for this analysis come from the Prosecutor’s Management Information Sys- tem (PROMIS) for the District of Colum- bia. This system contains information on criminal prosecutions brought to the Supe- rior Court Division of the United States Attorney’s Office. The sample consists of all prosecutions in 1974 in which the defendant was charged with a felony and pled guilty. The total number of cases is 1.790.

Charge reduction was measured a’s a dichotomous variable and was operational- izcd as a difference between the most serious charge brought by the prosecutor


and the most serious conviction charge, where seriousness is measured in terms of the maximum statutory penalty. Four indicators of evidentiary strength are used: (1) whether stolen property or physical evidence was recovered, (2) whether the defendant was arrested at the scene of the offense, (3) whether the number of witnesses to the crime is low (three or less) or high (four or more) and (4) whether the victim and offender knew each other before the offense.

It should be noted that these factors, with the exception of the victim-offender relationship, are clearly relevant to proving the behavioral elements of the offense, and similar, if not identical, indicators have been used in a study that established quantitative indicators for the evaluation of criminal cases (Jacoby, 1975). The victim-offender relationship was included since it is often noted that victims can be reluctant complainants or witnesses when they have known the defendant before the offense, and this can affect the strength of the prosecutor’s case (Newman, 1966).

Since some of the evidentiary indicators are irrelevant to certain types of crimes (e.g., the victim-offender relationship is not at issue in “victimless” crimes), and since there is reason to believe that certain evidentiary indicators are more important for some’crimes than for others (e.g., being arrested at the scene may be more important for property crimes than for person crimes) the sample was divided into four groups for the purposes of this analysis. They are (1) person crimes, (2) property crimes, (3) both person and property crimes, and (4) neither person nor property crimes. ’

RESULTS

Table 1 displays the bivariate relationship between the evidentiary indicators and charge reduction for each of the four offense groups. The data indicate a number of statistically significant relationships, all in the expected direction, and these relation-

ships vary with the type of offense under consideration. For crimes against the person, the recovery of physical evidence is negatively related to charge reduction, as is the number of witnesses. For crimes against property, an arrest at the scene of the offense is negatively related to charge reduction, and for crimes against both person and property the number of witnesses is negatively related to charge reduction. Fi- nally, for crimes against neither person nor property, none of the evidentiary indicators is related to charge reduction.

Although the data in Table 1 indicate that evidentiary factors are related to charge reduction, this bivariate analysis has its limitations. Observational studies indicate that offense seriousness, weapon use, and the offender’s criminal history are also important factors in the plea-bargaining process. Prosecutors tend to bargain harder in cases that involve more serious offenses (Mather, 1979), the use of a weapon, and offenders with a prior criminal record (Al- schuler, 1968). The importance of evidentiary factors relative to these other considerations remains to be determined. In addition, the literature strongly suggests that there is an interaction between evidentiary strength and other variables, and this analysis does not allow for the testing of interaction effects. For example, one study on plea bargaining developed a typology of cases based on the interaction of offense seriousness and evidentiary strength (Mather, 1979). It is possible, then, that the observed relationships can be further specified, or, that other suppressed relationships can be uncovered. To address these issues a multi- variate analysis is needed.

The statistical technique used is predictive attribute analysis (PAA). This technique is a hierarchical classification procedure, suited for testing interaction effects (Wilkins and Macnaughton-Smith, 1964). The objec- tive is to create groups through an iterative process that optimizes the difference on the dependent variable. The independent variable that is most strongly related to the dependent variable is first used to partition the sample and this procedure is then

530 KENNETH ADAMS

TABLE 1

PERCENTAGE OF DEFENDANTS PLEADING GUILTY WHO RECEIVED A CHARGE REDUCTION BY TYPE OF CRIME AND EVIDENTIARY FACTORS

Evidentiary Factor Person

Type of Crime

Property Both Neither

Total (N= 1,790) Property or Physical Evidence Recovered

No

Yes

Arrest at the Scene of the Offense

No

Yes

Victim-Offender relationship

Stranger

Non-Stranger

Number of Witnesses Low (three or less) High (four or more)

64.1% 64.5%

(N=340) (N=643)

71.2%** (N=226)

50.0%** (N= 114)

60.7%

(N= 178) 66.0%

(N=465)

70.7% (N= 123)

59.1% (N= 176)

71.6%**

(N=183) 59.1%**

(N=386)

67.3% (N= 147)

59.8% (N=112)

62.8%

(N=99)

66.7% (N=228)

65.1%

(N=312) 64.0%

(N=331)

40.3% (N=397)

44.7%

(N= 132)

38.3% (N=264)

40.9% (N= 149)

42.1% (N==202)

52.5% (N=40)

39.7% (N=272)

46.3%”

(N= 147)

41.9% (N=365)

41.7% (N= 127)

42.0% (N=238)

47.8% (N=92) 40.2%

(N=214)

not applicable

44.0% (N=216)

38.9% (N= 149)

NOTE: The number of cases reported in the subgroups may not sum to the total number of cases because of missing data.

*p C .os; **p 4 .Ol one-tail test

repeated with the remaining independent variables for each of the subgroups.

In this anaylsis Somers’ d is used as the measure of association. With dichotomous variables this statistic is roughly equivalent to the percentage point difference on the dependent variable between categories of the independent variable. Rules used to terminate the iterative process are: (1) if the Somers’ d statistic is less than 2.10, (2) if the X’ test statistic fails to reach the .05 level of signifcance, or (3) if the number of cases in a subgroup falls below 50. In addition to

the evidentiary indicators, other independent variables to be included in the analysis are offense seriousness based on the most serious offense charged, weapon use, and prior criminal record (whether the defendant was arrested in the last five years before the offense). The offense seriousness variable was not included in the analysis of the person and property group since all the cases were of the same seriousness level.

Figure 1 displays the results of the PAA for offenses against the person. The data indicate that for this offense type the factor


! 8

VI 4

532 KENNETH ADAMS

most strongly associated with charge rcduc- tion is the seriousness of the offense charged. Of those cases in the high seriousness category, 77.4 percent received a charge reduction as compared to 49.7 percent of the cases in the low seriousness category.

The second step of the analysis indicates that for those cases involving a high seriousness offense, the victim-offender rclation- ship is the variable most strongly associated with charge reduction. Within this subgroup, X0.3 percent of the casts involving a non-stranger victim received a charge reduction, while 62.2 percent of the cases with ;I

stranger victim received a charge reduction. For cases involving a low seriousness of- fcnse, weapon use is the variable most strongly associated with charge reduction. Within this subgroup. 77.8 percent of the cases involving no weapon use received a charge reduction as compared to 42.0 percent of the casts involving the use of a weapon.

The third step of the analysis indicates that for cases involving a high seriousness offense with a stranger victim, the recovery of physical evidence is the factor most strongly associated with charge reduction. Within this subgroup, 72.0 percent of the cases with no physical evidence recovered received a charge reduction as compared to 50.0 percent of the cases with physical evidence rccovcred. For cases involving a

low seriousness offense and the use of a weapon, prior criminal record is the factor most strongly associated with charge rcduc- tion. Within this subgroup, 52.2 percent of the cases in which the offender had not been arrested in the last five years received a charge reduction while 2X.8 percent of the casts in which the offender had been arrested received a reduction.

Overall, the analysis indicates that for person offenses the casts least likely to receive a reduction involve a low seriousness offense. the use of a weapon. and an offender with a prior criminal record (28.X percent). In contrast, the cases most likely to receive a reduction are those involving a high seriousness offense with a non-stranger victim (89.3 percent).

Figure 2 displays the results of the PAA for property offenses. For this offense type, the factor most strongly associated with charge reduction is an arrest at the scene of the offense. Of those cases in which the defendant was arrested at the scene. 59. I percent received a charge reduction as compared to 71.6 percent of those cases in which the defendant was not arrested at the scene. The second step of the analysis indicates that for both these subgroups the victim-offender relationship is the variable most strongly associated with charge reduction, but the direction of the association differs. The analysis indicates that casts involving a defendant who was arrcstcd at the scene of the offcnsc and a stranger victim are least likely to rcccive a reduction (54.5 pcrccnt), while casts involving a defendant who was not arrested at the scene and a stranger victim are the most likely to receive a reduction (7X.5 percent). In this latter cast the effect of the victim-offender relationship is opposite that which was expected.

The results of the PAA analysis for offenses against both property and person arc displayed in Figure 3. The data indicate that the factor most strongly associated with charge reduction is weapon USC. Of those cases involving the use of a weapon 27.3 percent received a charge reduction as compared to 54.3 percent of the casts that did not involve the use of a weapon. The second step of the analysis indicates that for cases involving the USC of a weapon the victim-offender relationship is the most important factor in charge reduction, while for those cases not involving the USC of a weapon the number of witnesses is the most important factor. Over- all. the cases most likely to reccivc a charge reduction involve no weapon USC and a low number of witnesses (63.1 percent). Those Icast likely to receive a reduction involve the USC of a weapon and a stranger victim (23.0 percent).

The PAA analysis for offcnscs against neither property nor person indicates that none of the variables is associated with charge reduction according to the elabo- rated criteria.

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DISCUSSION

The data indicate that a relationship does exist between evidentiary factors and prosecutorial concessions. In general, it was observed that cases involving weaker evidence are more likely to receive a charge reduction than are cases involving stronger evidence. Nonetheless, this relationship does not appear to be as strong as some suggest (i.e., Alschuler, 1968). Evidentiary strength appears to be an important consideration, but it does not consistently emerge as the most important factor in charge reduction. Thus, although observational studies indicate that evidentiary strength is critical throughout the plea negotiation process, these data suggest that it may not be as critical in terms of the actual concessions that the prosecutor routinely makes. How- ever, it should be noted that this analysis involved one type of prosecutorial concession and several broad evidentiary indicators. It may be that evidentiary strength is more important in other types of concessions, or that more specific indicators of evidentiary strength are needed. For example, prosecutors often must make subjective estimates concerning the quality of the evidence. It is very possible that as far as the prosecutor is concerned the credibility and demeanor of witnesses are just as important as their presence or absence. Also, these evidentiary indicators cannot address the question of whether a defendant would have been found innocent had a trial been held.

As anticipated, the data further indicate that different evidentiary factors are important in different types of offenses. They also suggest that the relative weight of evidentiary inputs in the prosecutor’s decision varies by the type of offense being considered. Evidentiary inputs were observed to be the most important factor in charge reduction for property crimes, while no relationship was observed for crimes against neither property nor person. Not only is it likely that this latter group, the so-called “victimless” crimes, present the prosecutor with special evidentiary problems; it also appears that when dealing with this type of

crime the prosecutor may rely on an entirely different set of considerations, since none of the variables examined was related to charge reduction.

Finally, the data suggest that interaction effects are an important consideration when investigating the relationship of evidentiary strength to prosecutorial concessions. The analysis indicates that for person offenses evidentiary factors were only important in the high seriousness category. In addition, the victim-offender relationship emerges as an important factor only when its interaction with other variables is taken into account. The interpretation of this particular variable in terms of evidentiary strength is somewhat ambiguous, however. Al- though it has been noted that non-stranger victims are more unreliable as complainants or witnesses than are stranger victims, the victim-offender relationship may also influence the prosecutor’s perception of the seriousness of the offense as well as his or her perception of the defendant’s culpabil- ity. Perhaps this may help to explain the mixed effects of the victim-offender relationship observed for property offenses. However, the data in this study do not allow for a test of these hypotheses.

Apart from the variables examined above, a number of interesting relationships between nonevidentiary factors and charge reduction were observed. The data indicate that for person offenses, the seriousness of the offense, weapon use, and prior criminal record are all related to charge reduction although the effect of the last two variables is limited to low seriousness offenses. For offenses against both person and property only weapon use is related to charge reduction. For property offenses and offenses against neither person nor property, none of these variables is related to charge reduction. It appears that these data in large part fail to corroborate the findings of earlier research that prior criminal record and offense seriousness, when measured in terms of the most serious offense charged, are important factors in charge reduction (Bernstein et al., 1977). However, they do corroborate the finding that when offense

536 KENNETH ADAMS

seriousness is related to charge reduction the direction of the relationship is positive. This relationship is opposite that which is suggested by observational field studies and could be due to a number of factors, including the following: prosecutors over- charge at the initial stages and this necessitates a charge reduction later on, more serious crimes simply present more possi- bilities for charge reduction, prosecutors have a stronger desire to assure conviction in more serious crimes and avoid trial by making better concessions, and statutes for more serious crimes are vaguely written and this necessitates a charge reduction to make the penalty more appropriate to the actual offense.

CONCLUSION

Overall, the findings of this study confirm earlier observations that evidentiary strength is related to prosecutorial concessions, although this relationship does not appear to be as strong as some suggest. In addition, the data indicate that the influence of evidentiary considerations on the prosecutor’s decision making varies by the type of offense and is more important for property crimes than for other crimes. This suggests that prosecutors selectively use their discretion to offer better plea concessions when the evidence is weaker. Since a relationship between evidentiary factors and charge reduction was observed by analyzing all guilty plea cases in a large metropolitan jurisdiction, debates over this practice can now be put into a perspective. Although these data cannot eliminate disagreements over the propriety of this practice, any tentative resolution must be seen as affecting the routine, daily operations of urban courts. As such, this indicates a need to scrutinize the fact-finding function of the guilty plea in a systemic manner.

In addition, the data support the position that some action needs to be taken to reduce the possibility that innocent defendants are convicted and to improve the appearance of fairness in the adjudicatory process. This is

not to imply that the guilty plea should be eliminated in favor of the trial as some would have it. This course of action may not be desirable or practicable. As was noted earlier. others point out that the guilty plea can, under certain circumstances, be a useful means of achieving justice, and still others feel it is an inevitable consequence of the way our criminal justice system is arranged. Rather, it is to suggest that factual requirements for accepting guilty pleas need to be specified. implemented. and refined. The Federal Rules of Criminal Procedure (18 USC 11-f) and the ABA Standards (American Bar Association, 196X) have taken a first step in this direction. They both require that the judge make an inquiry into the factual basis for the guilty plea. but neither elaborates further on the type of inquiry that is to be made. As one commen- tator has noted. this has not been adequate in the face of the problem he terms as *‘the passive judiciary” (Goldstein. 1981). In the end, the guilty plea can only be an accept- able method of adjudication if we take more aggressive steps first to recognize its limitations, analyze them empirically. and finally minimize their impact as much as possible.

ACKNOWLEDGMENTS

The data used in this manuscript were made nvailahlc by the Inter-University Consortium for Political and Social Kesearch and were originally collected by the Law Enforcement Assistance Ad- ministration. Neither the collectors of the data nor the consortium hear any rcsponsihilitv for the analywa or intcrprctations prescntcd herein. I would like to thank Charles Cutshall. Timothy Flanagan. and Donald Newman for their comments on earlier drafts of this manuscript.

NOTE

’ The person offense catcgow consists of assault (IV=%). murder(N=%).;a~e (N=3l). kidnapping (N=l4) and other (N=h). The protxrtv offcnac category consists of burglary (N=i55). larcen) (N=12X), auto theft (N=37). and other (N=31). The person and property offense category consists of robbery (N=398) and other (n=4). The neither person nor propcrtv offcnsc catcgorv consists of i‘orgcry (N=i l4j, c&xaled weap& iN=90), hail jumping (N=38), narcotics (IV=%), gambling (N=32). and other (N=%). These determinations


were made on the basis of the most serious offense charged by the prosecutor where seriousness is measured in terms of the maximum statutory penalty. However. the assaults include a number of cases involving weapons charges of the same seriousness level and the robberies include a number of cases with person or property crimes of the same seriousness level. The number of cases in these groups does not sum to the total number of cases because of missing data.

---(1978). PIea bargaining: The experience of prosecutors, judges and defense attorneys. Chicago: University of Chicago Press.

Jacoby, J. (1975). Case evaluation: Quantifying prosecutorial policy. Judicature 58:486-493.

Jones, J. (1978). Prosecutors and the disposition of criminal cases: An analysis of plea bargaining rates. J. of Crim. Law and Criminol. 69:402-412.

REFERENCES

La Goy. S.; Senna. J.; and Siegel, L. (1976). An empirical study on information usage for prosecutorial decision making in plea negotiations. Am. Crim. Law Rev. 13:435-471.

Alschuler, A. (1968). The prosecutor’s role in plea bargaining. U. of Chicago Law Rev. 36:X-l 12.

American Bar Association (1968). Standards relating to pleas of guilty, approved draft. New York: Institute of Judicial Administration.

McDonald, W.; Cramer, J.; and Rossman, H. (1980). Prosecutorial bluffing and the case against plea bargaining. In Plea bargaining, ed. W. McDon- ald and J. Cramer, pp. l-23. Lexington, MA: D.C. Heath.

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the effect of evidentiary factors on charge reduction

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