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The Propriety Of Prosecutorial Bluffing
By Mark Mermelstein and Stephanie Albrecht
November 28, 2017, 1:26 PM EST
This year, the Innocence Project celebrated its 25th anniversary. With this
milestone, Time magazine observed the increasing trend of exonerations of the
falsely accused: “For the third year in a row the number of exonerations in the
United States has hit a record high. A total of 166 wrongly convicted people whose
convictions date as far back as 1964 were declared innocent in 2016. On average,
there are now over three exonerations per week — more than double the rate in
2011.” With this staggering number of false convictions, one must ask: Why are
there so many falsely accused in the first place?
One problem in this regard is that prosecutors bluff to induce guilty pleas. Imagine
your client finds himself in a meeting with a criminal prosecutor. The prosecutor
says that she is prepared to charge your client with a crime and, if convicted, he will
most likely get seven years in custody. But if he pleads guilty today, she explains,
the most he will get is one year. Do you recommend your client take the deal?
Considering the time and expense of trial and the fact that people remember the
fact that someone was charged as much as the trial outcome, most would be
seriously tempted to take the deal even if they “didn’t do it.”
But what if the prosecutor were bluffing? What if the prosecutor didn’t really
intend to charge your client because she has a mere circumstantial case against
him? What if the prosecutor had already charged the main target of her
investigation and your client were just on the periphery — she wasn’t really
interested in spending the time to build a case against your client but was just looking to “clean up”
loose ends. If your client pleads, great, she gets another notch on her belt, but if your client doesn’t, no
sweat, because the conduct doesn’t really warrant the government spending the resources going after
your client. Or consider a different scenario: What if the key witness the prosecutor says she has ready
to testify against your client has actually died? Or similarly, what if the key recording the prosecutor says
she has of your client conspiring to commit the crime doesn’t actually exist?
Is a Guilty Plea Induced by Prosecutorial Bluffing Voidable?
Let’s say your client takes the prosecutor’s offer. If you find out after your client has pled guilty or after
sentencing that your client’s plea was induced by a bluff (because, for example, you learn the key
Mark Mermelstein
Stephanie Albrecht
