Plea Bargaining: The Influence of Counsel

Abstract

For the criminal defendant, his attorney acts as his loyal and zealous advocate before the court (American Bar Association, 2015), and due process protections of the U.S. adversarial system have afforded this relationship special privilege. In this chapter, we explore the influence and role of the attorney in plea decision-making. We first explore the legal context of the attorney’s role in plea bargaining, reviewing several cases that address a defendant’s right to effective assistance of counsel. We then review the shadow of trial theory and other theoretical perspectives as they relate to the attorney’s role in the plea bargaining process, providing a theoretical background to understand how the attorney’s advice and role likely influence a defendant’s decision to accept a guilty plea offer. Then, we discuss the research examining legal and extra-legal factors that influence the type of advice an attorney gives a client contemplating a guilty plea offer, considering the implications of this research for the current standards used to define effective assistance of counsel. Last, we explore future research possibilities that could contribute to the understanding of the role the attorney plays in the plea bargaining process.