Publication Title

Washington & Lee Law Review

Document Type

Article

Publication Date

1-1-2009

Abstract

The dominant theoretical model of plea bargaining predicts that, under conditions of full information and rational choice, criminal cases should uniformly be settled through plea bargaining. That prediction holds for innocent and guilty defendants alike. Because it is perfectly rational for innocent defendants to plead guilty, plea bargaining might be said to have an "innocence problem." Plea bargaining's innocence problem is, at bottom, the result of a signaling defect. Innocent defendants lacking verifiable innocence claims are pooled together with guilty defendants who falsely proclaim innocence. As a result, both groups of defendants are treated similarly at trial and in plea bargaining. Signaling defects, however, at least in theory, can be overcome. As economists have observed, a variety of signaling mechanisms reliably communicate nonverifiable information among parties. This Article considers one such signaling mechanism, subwagers, and attempts to demonstrate their capacity to signal the kind of private information typical in the plea bargaining context. Not only are subwagers theoretically possible, the Article argues that police interrogation already functions as such a subwager. The Article addresses the theoretical basis and empirical evidence supporting the hypothesis regarding interrogation's important impact on plea bargaining, and concludes that plea bargaining theory must be modified to take account of the effects of subwager-type signaling.

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Recommended Citation

Russell D. Covey, Signaling and Plea Bargaining's Innocence Problem, 66 Wash. & Lee L. Rev. 73 (2009).

Volume

66

Issue

1

First Page

73

Last Page

130

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