Breaking the Faustian Bargain: Using Ethical Norms to Level the Playing Field in Criminal Plea Bargaining

• Author: David A. Lord
• Position: Deputy Commonwealth's Attorney for Alexandria, Virginia and has been a prosecutor for over 15 years
• Pages: 73-103

Breaking the Faustian Bargain: Using Ethical

Norms to Level the Playing Field in Criminal Plea

Bargaining

DAVID A. LORD*

ABSTRACT

Every day in courthouses throughout the United States, defendants are faced

with a Faustian bargain: they can accept a plea deal that minimizes the pain of

immediate incarceration, but with potentially devastating long-term consequen-

ces. This dilemma is fostered by the asymmetrical power structure in criminal

plea bargaining, which enables prosecutors to extract guilty pleas in a manner

that undermines the fairness of the court system. The criminal justice reform

movement has sought to balance this playing field through reforms like ending

mandatory minimums. These efforts will ultimately be insufficient because these

initiatives only impact the fundamental problem at the margin and these

reforms rest on an insecure foundation of shifting politics. In this Article, career

prosecutor and ethics instructor David A. Lord argues that insufficient ethical

guidance for prosecutors, specific to plea negotiations, is the core problem that

enables this travesty of justice to continue. This Article looks at cases such as

Bill Cosby’s and examines the Model Rules of Professional Conduct to offer an

ethical rubric for criminal plea negotiations that levels the playing field

between the prosecution and defense. This ethics rubric aims at fostering a

more just culture of prosecution by providing specific questions that a prosecu-

tor should ask before making a plea offer and providing norms that can be used

both by supervisors and in legal instruction when discussing plea negotiations

and prosecutorial ethics.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

I. THE RULES OF PROFESSIONAL CONDUCT AND SECONDARY

SOURCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

* David A. Lord is the Deputy Commonwealth’s Attorney for Alexandria, Virginia and has been a prosecu-

tor for over 15 years. He currently supervises the Special Victims Unit and has prosecuted a wide array of cases

from murder to traffic tickets in his career as a prosecutor. David has an ancillary focus in teaching prosecuto-

rial ethics and regularly lectures in this area. © 2022, David A. Lord.

73

A. Rules OF PROFESSIONAL CONDUCT . . . . . . . . . . . . . . . . . . 79

1. PLEA BARGAINING AS PART OF A COMPETENT, EFFICIENT, AND

FAIR JUDICIAL SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

2. TRUTHFULNESS IN PLEA NEGOTIATIONS . . . . . . . . . . . . . . . . 83

3. DEALING WITH UNREPRESENTE D PERSONS. . . . . . . . . . . . . . . 87

B. SECONDARY AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . 89

1. WILLINGNESS TO PLEA BARGAIN. . . . . . . . . . . . . . . . . . . . . 90

2. CONSIDERATION OF COLLATERAL CONSEQUENCES . . . . . . . . . 91

3. PROVISION OF EXCULPATORY EVIDENCE. . . . . . . . . . . . . . . . 93

4. WAIVER OF RIGHTS IN PLEA NEGOTIATIONS . . . . . . . . . . . . . 96

II. GUIDING PHILOSOPHY AND SYNTHESIS . . . . . . . . . . . . . . . . . . . 98

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

INTRODUCTION

In its ideal state, the American legal system is built on high-quality adversarial

confrontation. Two opposing sides work diligently to promote their clients’ inter-

ests, and that competition is mediated through the prism of the law and the rules

of evidence to produce a just result. But when one of the litigants has dispropor-

tionate power in establishing the rules of the game, it creates a serious challenge

to achieving justice. As a prosecutor, I acknowledge that when I step into the

courtroom, it often is not a fair fight. In what game does one team get to decide

the playing field and structure in which the competition takes place? In my line of

work that happens every day. I decide who gets charged and with which crimes.

Those decisions, along with “first mover advantage,”

1

often result in my deter-

mining the analytical framework within which the trial itself takes place.

Plea negotiations, much like trials, suffer from a similar asymmetrical power

structure. What can a defendant offer a prosecutor in negotiations? The defendant

can save me time and effort, which allows me to move on to the next case and

focus my resources on other cases. The defendant can save me the embarrassment

1. In the game of chess, for example, research has shown that the player using the white pieces (the first

mover) has a discernible advantage over the player using the black pieces, because he or she has the ability to

“coax the opening phase of the game toward the system that they prefer.” Rob Weir, First Move Advantage in

Chess, AN ANTIC DISPOSITION (Jan. 27, 2014), https://www.robweir.com/blog/2014/01/first-move-advantage-in-

chess.html [https://perma.cc/7QZL-W6PV]. A similar advantage could be argued to exist in litigation because the

prosecutor, by addressing the jury first both in voir dire and opening statements, can create expectations or put

ideas into the minds of the jury that must be responded to by the defense, or it may leave the jury with the

impression that the defense has the weaker case. This puts the defense “on the defense” all the time.

74 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:73