“Sometimes I’m Just Wearing the Prosecutor Down”: An Exploratory Analysis of Criminal Defense Attorneys in Plea Negotiations and Client Counseling

Abstract

As plea bargains have proliferated in the criminal justice system, scholars have been working to better understand their mechanics. There have been a few recent examinations of plea bargaining, but the literature lacks qualitative research that gives the defense sufficient attention. Using a sample of courtroom practitioners in one large, urban county, we examine defense attorney bargaining and client counseling tactics. Results demonstrate that defense attorneys use a variety of strategies for negotiation, including sharing humanizing information about their clients with the prosecutor and utilizing delay tactics. Results also suggest that attorneys counsel their clients about plea offers in varying ways and that they are not in full agreement regarding the level of autonomy to give their clients. Overall, results support some prior literature but also prompt questions of other widely-held beliefs, such as the idea that all courtroom actors endorse “going rates” as the prevailing norm in the courtroom. Although there are likely some expectations for typical punishments, these results also point to individual defense attorneys' ability to alter the trajectory of a criminal case through their negotiation and client counseling strategies. We conclude that more research is necessary on defense counsel strategies and how they may impact case processing and outcomes.Â