“Reject the Offer”: The Asymmetric Impact of Defense Attorneys’ Plea Recommendations

• Published date: 01 September 2023
• DOI: http://doi.org/10.1177/00938548231172515
• Author: Kelsey S. Henderson,Kelly T. Sutherland,Miko M. Wilford
• Date: 01 September 2023
• Subject Matter: Articles

CRIMINAL JUSTICE AND BEHAVIOR, 2023, Vol. 50, No. 9, September 2023, 1321 –1340.

DOI: https://doi.org/10.1177/00938548231172515

Article reuse guidelines: sagepub.com/journals-permissions

© 2023 International Association for Correctional and Forensic Psychology

1321

“REJECT THE OFFER”

The Asymmetric Impact of Defense Attorneys’ Plea

Recommendations

KELSEY S. HENDERSON

Portland State University

KELLY T. SUTHERLAND

MIKO M. WILFORD

University of Massachusetts Lowell

In two studies, we examined the impact of defense attorney recommendation on defendant plea decision-making. Community

members and college students participated in a 2 (guilt status: innocent or guilty) × 2 (defense attorney recommendation:

accept or reject offer) between-subjects factorial design study. The plea scenario was conveyed via an interactive computer

simulation. In both studies (Study 1, n = 106; Study 2, n = 282), guilty participants were more likely to plead guilty than

innocent participants. In Study 2, participants advised to accept the plea were more likely to plead guilty than those advised

to reject the plea. Furthermore, being advised to reject the plea resulted in larger changes in willingness to accept a plea

(WTAP) than being advised to accept the plea. This asymmetric effect was driven by those participants who were initially

inclined to plead guilty but then received advice inconsistent with that inclination.

Keywords: attorney recommendation; defense attorney; guilty pleas; plea bargaining; social influence

Experimental studies, self-reports, and anecdotal evidence all point to the fact that inno-

cent individuals plead guilty. Experimental vignette studies have recorded false guilty

plea rates near 20% (20.3%, Bordens, 1984; 18%, Gregory et al., 1978; 20%, Tor et al.,

2010), and true guilty plea rates near 75% (79.6%, Bordens, 1984; 83%, Gregory et al.,

1978; 67%, Tor et al., 2010). Furthermore, nearly one in five of all documented wrongful

convictions involved defendants who pleaded guilty to the crimes for which they were

exonerated (National Registry of Exonerations, 2022), and this proportion continues to

increase (Wilford & Bornstein, 2023). As these exonerations reveal the scope of plea bar-

gaining’s role in wrongful convictions, social scientists are increasingly investigating the

motivations underlying plea decisions.

AUTHORS’ NOTE: We have no conflicts of interests to disclose. Correspondence concerning this article

should be addressed to Kelsey S. Henderson, Department of Criminology & Criminal Justice, Portland State

University, P.O. Box 751, Portland, OR 97201; e-mail: Kelsey.henderson@pdx.edu.

1172515CJBXXX10.1177/00938548231172515Criminal Justice and BehaviorHenderson et al. / Asymmetric Impact of Plea Recommendations

research-article2023

1322 CRIMINAL JUSTICE AND BEHAVIOR

One influential external factor in defendant plea decision-making is the defense attor-

ney–more specifically, their advice and recommendation. The psychological mechanisms

of social influence and persuasion offer some insight into why defendants are motivated by

interactions with their defense attorney, and specifically, recommendations proffered by

their attorney. Social influence occurs whenever individuals change their behavior, atti-

tudes, or decisions in response to implicit or explicit cues from another individual (e.g.,

obedience to authority, acquiescence to peer pressure; see Cialdini & Goldstein, 2004;

Milgram, 1974). Social influence appeals are typically centered around the source’s posi-

tion (e.g., authority, power dynamic), whereas persuasive appeals are typically centered

around the argument or information being conveyed (Wood, 2000). Defense attorneys act

as the defendant’s advocate in navigating the criminal justice system. In the context of attor-

ney recommendations, it is likely that defendants are influenced by their attorney given

their power and authority (their position in the adversarial system and their legal knowl-

edge) and will comply with their attorney’s advice accordingly. Consequently, it is possible

that defendants’ attitudes and legal decisions may change after hearing their attorney’s rec-

ommendation regarding the best course of action in their case.

To explore the impact of defense attorney recommendation, this project consisted of two

studies; both employed novel computer simulation software designed to mimic legal sce-

narios (Wilford, Sutherland, et al., 2021; Wilford, Zimmerman, et al., 2021; Yan et al.,

2022). Study 1 examined the influence of attorney recommendation (“accept” versus

“reject” the plea offer) on innocent and guilty individuals’ plea decisions. Study 2 replicated

and extended Study 1 by measuring how much attorney advice influenced plea decisions,

capturing defendants’ willingness to plead before and after the attorney’s recommendation.

The goal of this project is to reconcile inconsistencies in the literature regarding the impact

of attorney recommendation on plea decisions by applying a more direct and sensitive mea-

sure of defendants’ willingness to plead guilty.

HOW DO DEFENSE ATTORNEYS INFLUENCE PLEA DECISIONS?

Generally, defense attorneys influence defendants’ plea decisions via their discussions

with defendants, as well as the content of their recommendations (Malloy et al., 2014;

Redlich et al., 2010; Viljoen et al., 2005). Although defense attorneys can inform defen-

dants’ decisions, and often give explicit recommendations, the decision to plead guilty

(among other decisions) rests solely with the defendant. Given the frequency with which

these decisions are made, research has begun to explore the impact of attorney recommen-

dation on defendants’ plea decisions. Thus far, the findings are inconsistent.

Studies using a variety of methodologies have found that defense attorney recommenda-

tion influences defendant plea decisions (Henderson & Levett, 2018; Henderson &

Shteynberg, 2020; Lee et al., 2020). Using a modified cheating paradigm, Henderson and

Levett (2018) found that attorney recommendation had a larger effect on innocent individu-

als’ decisions than on guilty individuals. Innocent individuals advised to go to trial had a 4%

false guilty plea rate, compared with those not given advice (35%), given neutral educa-

tional information (47%), or those advised to plead guilty (58%). Using a vignette, Lee and

colleagues found a significant interaction between guilt status and attorney evaluation of

the plea offer (“good” vs. “bad” vs. “average”; 2020), guilty participants told the offer was

“bad” were less likely to plead guilty than those told the offer was “average.” Finally, using