Between the time that the police make an arrestand a case is eventually resolved at sentencing, traditional prosecutions involve several steps withpsychological implications. One feature of traditionalprosecutions with obvious psychological overtones isa trial. The grand finale in our adversary system ofjustice—the trial—is a public battle waged by twocombatants (prosecution versus defense in a criminaltrial, plaintiff versus defendant in a civil trial), eachfighting for a favorable outcome. Trials can befiercely contested; prosecutors desire convictions,criminal defendants seek their freedom throughacquittals, civil plaintiffs want compensation forwrongs they have suffered, and civil defendants hopeto be absolved of wrongdoing and not required to paydamages. Psychological issues abound.Although the trial may be the most visible anddramatic ritual in our system, many other factors playlarger—often decisive—roles in determining caseoutcomes. For example, in the weeks and months following arrest, many criminal cases are simplydismissed for lack of evidence or other difficulties thatprosecutors perceive in the case. Of some 49,000defendants charged with a felony from 1990 to 2002in the 75 most populous counties in the United States,24% had their cases dismissed prior to trial (Cohen &Reaves, 2006).For the vast majority of people charged withcrimes and not fortunate enough to have the chargesdropped,plea bargains, not trials, resolve their cases.Plea bargaining, described in more detail later in thechapter, is a process in which a defendant agrees toplead guilty in exchange for some concession fromthe prosecutor. Such concessions typically involve areduction in the type of charge, the number ofcharges, or the recommended sentence. By pleadingguilty, defendants give up their right to a trial,allowing attorneys and judges to move on to othercases. The vast majority of civil cases are also resolvedwithout a formal trial in a process termedsettlementnegotiation, described in more detail in this chapter.If most cases are settled without a trial, why is oursociety (including psychologists who work in the legalarena) so fascinated by trials and trial procedures?Without a doubt, there are theatrical aspects to manytrials, especially those featured in news media, films,and novels. Trials grab our attention because theyvividly portray the raw emotions of sad, distraught,and angry people. Interest in trials is also related totheir very public nature; most trials are conducted inopen court for all to see. Some are televised or evenavailable for online viewing.In contrast, negotiations about plea bargains andsettlements are largely hidden from public view.Prosecutors offer concessions to defense attorneysover the phone or in courthouse hallways. Defenseattorneys convey these offers to their clients in officesor jail cells. Settlement negotiations in civil cases arealso conducted in private. In fact, the eventualsettlements in civil ca ...

1. Between the time that the police make an arrestand a case is
eventually resolved at sentencing, traditional prosecutions
involve several steps withpsychological implications. One
feature of traditionalprosecutions with obvious psychological
overtones isa trial. The grand finale in our adversary system
ofjustice—the trial—is a public battle waged by twocombatants
(prosecution versus defense in a criminaltrial, plaintiff versus
defendant in a civil trial), eachfighting for a favorable outcome.
Trials can befiercely contested; prosecutors desire
convictions,criminal defendants seek their freedom
throughacquittals, civil plaintiffs want compensation
forwrongs they have suffered, and civil defendants hopeto be
absolved of wrongdoing and not required to paydamages.
Psychological issues abound.Although the trial may be the most
visible anddramatic ritual in our system, many other factors
playlarger—often decisive—roles in determining
caseoutcomes. For example, in the weeks and months following
arrest, many criminal cases are simplydismissed for lack of
evidence or other difficulties thatprosecutors perceive in the
case. Of some 49,000defendants charged with a felony from
1990 to 2002in the 75 most populous counties in the United
States,24% had their cases dismissed prior to trial (Cohen
&Reaves, 2006).For the vast majority of people charged
withcrimes and not fortunate enough to have the
chargesdropped,plea bargains, not trials, resolve their
cases.Plea bargaining, described in more detail later in
thechapter, is a process in which a defendant agrees toplead
guilty in exchange for some concession fromthe prosecutor.
Such concessions typically involve areduction in the type of
charge, the number ofcharges, or the recommended sentence. By
pleadingguilty, defendants give up their right to a trial,allowing
attorneys and judges to move on to othercases. The vast
majority of civil cases are also resolvedwithout a formal trial in
a process termedsettlementnegotiation, described in more detail

2. in this chapter.If most cases are settled without a trial, why is
oursociety (including psychologists who work in the legalarena)
so fascinated by trials and trial procedures?Without a doubt,
there are theatrical aspects to manytrials, especially those
featured in news media, films,and novels. Trials grab our
attention because theyvividly portray the raw emotions of sad,
distraught,and angry people. Interest in trials is also related
totheir very public nature; most trials are conducted inopen
court for all to see. Some are televised or evenavailable for
online viewing.In contrast, negotiations about plea bargains
andsettlements are largely hidden from public view.Prosecutors
offer concessions to defense attorneysover the phone or in
courthouse hallways. Defenseattorneys convey these offers to
their clients in officesor jail cells. Settlement negotiations in
civil cases arealso conducted in private. In fact, the
eventualsettlements in civil cases are often never made
public.You may notice that we expend many more pagesof this
book on psychological issues before and duringtrials than we do
on plea bargains or settlementnegotiations. This choice reflects
the available data.Like the general public, psychologists are
intrigued bythe interpersonal dramas and behavioral
complexities involved in trials. Thus, psychologists have
conducted agreat deal of research on trials and have much to
sayabout them. But keep in mind that most cases aredisposed of
in a different and less public way—through plea bargains and
settlement discussions thatare core concepts of this chapter.In
addition to plea bargains and settlements, thischapter examines
other pretrial proceedings in criminalcases including pretrial
motions and bail setting, andoutlines the steps involved in a
trial. All of theseprocedures raise important psychological
questionsthat have been addressed through
experimentation,observation, or empirical analysis. We preface
thoseissues by describing the customary sequence ofpretrial
activities in the criminal justice system.STEPS BETWEEN
ARREST AND TRIALIf the police believe that a suspect
committed a crime,they will probably arrest the suspect.

3. However, beingarrested for a crime and being charged with a
crimeare two different events, and a person may be
arrestedwithout being charged. For example, the police
mayarrest drunks to detain them and sober them up, butformal
charges might never be filed. Charging impliesa formal decision
to continue with the prosecution,and that decision is made by
the prosecuting attorneyrather than the police.The Initial
AppearanceTheinitial appearanceis a crucial step in the crimi-
nal process. The Fourth Amendment to the UnitedStates
Constitution requires that any person arrestedbe brought before
a judge within 48 hours of arrest.This is one of the most
important protections of theBill of Rights. In many countries
the police arrestpeople (or“detain”them, a euphemism for
arrest)and hold them without charge for extendedperiods—
or indefinitely. In the United States, how-ever, anyone who is
arrested must be taken withoutdelay before a judge, an
important protection againstabuse of power by the police. The
primary purpose ofthe initial appearance is for the judge to
review theevidence summarized by the prosecutor and deter-
mine whether there is reason to believe that the sus-pect
committed the crimes charged. In addition, thejudge will inform
defendants of the charges againstthem, inform them of their
constitutional rights,review the issue of bail, and appoint
attorneys forthose that cannot afford to hire their own.The
Preliminary HearingThe next step is thepreliminary hearing.
One of itspurposes is to filter out cases in which the
prosecutionhas insufficient evidence. At a preliminary
hearing,the prosecution must offer some evidence on
everyelement of the crime charged and the judge mustdecide
whether the evidence is sufficient to pursuethe case further. No
jury is present and defendantsrarely testify or offer any
evidence of their own.The judge will sometimes send the case to
a grandjury (described next) or reduce the charges,
eitherbecause he or she believes the evidence does not sup-port
the level of crime charged by the prosecutor orbecause of a plea
bargain between the prosecutor andthe defense attorney.The

4. Grand JuryConsisting of citizens drawn from the community,
thegrand jurymeets in private with the prosecutor toinvestigate
criminal activity and returnindictments(complaints prepared and
signed by the prosecutordescribing the crime charged). The
grand jury maycall witnesses on its own initiative if it is
dissatisfiedwith the witnesses presented by the prosecutor.
Insome states the defendant has a right to testify. In aboutone-
third of the states, a criminal defendant cannot beprosecuted
unless a grand jury has found grounds to doso. The remaining
states permit the prosecutor toproceed either by grand jury
indictment or by a pre-liminary hearing. In the 2012 case of
Trayvon Martin,an unarmed Florida teen who was fatally shot
byGeorge Zimmerman, a neighborhood watch volunteer,the
prosecutor decided to forego a grand jury investiga-tion and to
determine on her own whether to chargeZimmerman. Because
local authorities initially optednotto press charges, sparking
protests nationwide, alleyes focused on the
prosecutor’sdecision.Zimmermanwas charged with second-
degree murder.If the grand jury decides there is sufficient evi-
dence to justify the defendant being tried, it issuesan
indictment. For example, former Penn State foot-ball coach
Jerry Sandusky was indicted on multiplecounts of deviant
sexual intercourse, endangeringthe welfare of a child, indecent
assault, and other charges, all resulting from his alleged rape of
youngboys between 1994 and 2009.ArraignmentA grand jury
gives its indictments to a judge, whobrings those indicted to
court for arraignment. Atthearraignment, the judge makes sure
that thedefendant has an attorney and appoints one if neces-
sary. The indictment is then read to the defendant,and the
defendant is asked to plead guilty or notguilty. It is customary
for defendants to plead notguilty at this time, even those who
ultimately pleadguilty. The reasons for a not-guilty plea at this
stageinvolve providing opportunities for both plea bar-gaining
and discovery (described next), so that thedefendant’s attorney
can review some of the evidenceagainst the defendant.Discovery
and Pretrial MotionsDefendants and their attorneys want to be

5. aware of theevidence the prosecution will use to prove its
case.In civil trials, each side is entitled todiscovery—thatis,
each side has a right to depose (or question) thewitnesses on the
opposing side, and to review andcopy documents that the other
side might use at trial.In criminal cases, just how much the
prosecution mustreveal to the defense varies widely. Some
states requireprosecutors to turn over to the defense all
reports,statements by witnesses, and physical evidence.
Moststates require only that the prosecutor share
certainevidence (e.g., laboratory reports) and evidence
thatisexculpatory(i.e., that tends to show the defendantis not
guilty or suggests that prosecution witnesses arenot credible).
In part because prosecutors failed toshare exculpatory evidence,
a Colorado man spenteight and a half years in prison for a crime
he didn’tcommit. We describe his case in Box 8.1.Discovery is
a two-way street. In general, statesrequire the defense to turn
over the same types ofmaterials that the prosecution must turn
over. If theprosecution is required to reveal laboratory
reports,the defense will likewise be required to share
suchreports. In many states, the defense is required tonotify the
prosecution if it intends to rely on certaindefenses, notably
insanity and alibi defenses. The rea-son for requiring such
pretrial notice is to give thestate an opportunity to investigate
the claim andavoid being surprised at trial.During the discovery
phase of the case, both sidesfile pretrial motions seeking
favorable rulings on theadmissibility of evidence. Motions
commonly filed bythe defense are the following:1.Motion for
separate trials. When two or moredefendants are jointly
indicted, one of them canbe counted on to request a separate
trial, claimingthat to be tried together would be prejudicial.Such
a motion was granted in the case ofTimothy McVeigh and Terry
Nichols, who were convicted in separate trials of bombing the
federalbuilding in Oklahoma City, killing 168 people.McVeigh
was convicted of murder and sentencedto death, but Nichols was
convicted of a lessercharge (conspiracy) and sentenced to
lifeimprisonment.2.Motion to sever counts.Suppose the

6. indictmentcharges the defendant with robbing a conve-nience
store on April 13 and burglarizing a houseon April 15. The
defendant may request separatetrials on these offenses. A
defendant may arguethat it is prejudicial for the same jury to
hearevidence about separate crimes because the jurywill be
tempted to combine the evidence intro-duced on the separate
crimes to find the defen-dant guilty of each crime. There is
good reasonfor defendants to be concerned about how a jurywill
react to multiple charges. Psychologicalresearch studies that
simulate jury decision mak-ing have shown that jurors are more
likely toconvict a defendant on any charge (e.g., robbery)when
it is combined with another (e.g., burglary)than when it is tried
alone (e.g., Greene & Loftus,1985). A review of nearly 20,000
federal criminaltrials over a five-year period reached a
similarconclusion (Leipold & Abbasi, 2006).3.Motion for
change of venue.The defendantmay request achange of
venue(movingthe proceedings to a different location) on
theground that community opinion, usually theproduct of
prejudicial pretrial publicity, makesit impossible to seat a fair-
minded jury. Psy-chologists are sometimes involved in
analyzingthe extent and impact of the publicity onprospective
jurors.4.Motion to suppress a confession or other statement
bythe defendant.The Fifth Amendment protectsagainst self-
incrimination, and the Sixth Amend-ment forbids the use of a
statement taken inviolation of the right to counsel. One or both
ofthese constitutional provisions may become rel-evant any time
the prosecution offers a confessionor other statement by a
defendant as evidence ofguilt. Typically, defense counsel files a
motionalleging that the confession was obtained in vio-lation of
the defendant’s constitutional rights, theprosecutor files a
written response, and the courtholds a hearing at which the
defendant and policegive their versions of the circumstances
underwhich the confession was obtained. The judgedecides the
issue on the basis of what was said andthe credibility of the
witnesses. Questions of who is telling the truth are usually
resolved in favor ofthe police. Criminal defendants who believe

7. thattheir confessions were coerced or made invol-untarily have
good reason to try to suppressthem, because juries tend to
accept a defendant’sconfession without careful evaluation of the
cir-cumstances that led to the confession.5.Motionsin
limine.Perhaps the most commonpretrial motions are those that
seek advance rul-ings on evidentiary issues that will arise at
trial. Amotionin limineis simply a request for a pretrialruling.
Suppose, for example, that the defendantwas previously
convicted of burglary. The judgemust decide whether to allow
the prosecution tointroduce that conviction into evidence in
orderto discredit the defendant if he chooses to testify.The
defendant obviously wants a pretrial rulingon this issue in order
to plan the questioning ofthe jurors and to decide whether to
testify. Sim-ilarly, the prosecutor may want a pretrial rulingon
the admissibility of a certain piece of evidencein order to plan
the opening statement.THE DECISION TO SET BAILJudges
must decide whether to keep criminal defen-dants in custody
during the lengthy process betweenarrest and trial or whether to
release them into thecommunity with a promise to reappear for
subsequenthearings. Judges have many options. In some
cases(capital cases and cases in which the defendant posesa
serious risk of fleeing or committing other crimes),they can
deny bail altogether. Short of denying bail,judges can require
that money (or a bail bondsman’spledge) be deposited with the
court or that a thirdperson agrees to be responsible for the
defendant’sfuture appearances and to forfeit money if the defen-
dant does not appear. When bail is higher than defen-dants can
afford, they have no choice but to remain injail. Studies of
defendants who promised to reappearshowed that most
defendants did so (Feeley, 1983).Whether bail bonds actually
reduce the risk of nonap-pearance is not clear. Box 8.2
describes techniques thatbail bond agents use to ensure that
defendants whopost bail will show up for court.In addition to
ensuring the defendant’s return tocourt, bail has a secondary
purpose: protecting publicsafety. In fact, bail evolved in the
American legal sys-tem as an attempt to resolve the basic

8. conflictbetween an individual’s right to liberty on the onehand,
and societal rights to be protected from criminalbehavior on the
other. The Eighth Amendment to theU.S. Constitution says that
excessive bail shall not berequired, but the Supreme Court has
ruled that thisprovision does not guarantee a right to bail; it
simplyrequires that bail, if any, should not be excessive(United
States v. Salerno, 1987). Although various lawsgovern the bail
decision, they are typically vague and illdefined, allowing
judges considerable leeway in thefactors they consider and the
way they make the deci-sion about bail.Box8.2THE CASE
OF“LITTLE RANDY”WITHERS AND THE CYBERSEARCH
FOR DEFENDANTSON THE RUNBail bond agents like Duane
Lee“Dog”Chapman (star ofthe reality television programDog
the Bounty Hunter)are renowned for their diligence in tracking
down defen-dants who have skipped bail and failed to return to
courtas required. Bonding agents stand to lose the value ofthe
bond posted if the defendant cannot be located, sotheir financial
incentive for locating and returning thedefendant to custody is
considerable. Although bondingagents have been criticized in
the past for strong-armsearch-and-return tactics, they
increasingly are turningto modern technology to catch
defendants on the run.One of those fugitive defendants
was“Little Randy”Withers, who was charged with possession of
a firearmby a felon and whose picture was included on the web-
site entitled“The World’s Most Wanted—Bail
Jumpers”(www.mostwanted.org). The 21st century’s
counterpartto the old“Wanted Dead or Alive”posters of the
west-ern frontier, this website describes Withers as a
Blackmale, born on April 28, 1975, 5 feet 7 inches tall,
175pounds, black hair and brown eyes, residing in
Charlotte,North Carolina. Warning that these defendants
have“Nowhere to Run! Nowhere to Hide!”the
subscribingcompanies typically offer $1,000 and $2,000 cash
rewardsfor information that leads to the apprehension of
themost wanted bail fugitives. They also caution would-
bebounty hunters that most of the suspects are armed andshould

9. be considered dangerous.Critical Thought QuestionsWhat are
the implications for most defendants, fugitivedefendants
like“Little Randy”Withers, and the generalpublic when suspects
are released on bail prior to trial? What Considerations Affect
theDecision to Set Bail?Psychologists and other social scientists
have exam-ined how judges make bail-setting decisions
(e.g.,Allan, Allan, Giles, Drake, & Froyland, 2005). In par-
ticular, they have evaluated the factors that judgesconsider and
the cognitive processes by which judgesweigh and combine
these factors.Bail decisions are influenced by both legal
andextralegal factors.Legal factorsare related to theoffense or
the offender’s legal history; research hasshown that bail is
likely to be denied or set very highwhen the offense was serious
and when the offenderhas prior convictions. But because the
laws relevant tobail decisions are ill defined and there is little
publicscrutiny of this step in the criminal process, there
ispotential for offenders’race and gender—extralegalfactors—to
affect judges’decisions (Demuth, 2003).In fact, race and gender
had significant impacts onjudges’pretrial release decisions in
drug cases in amid-sized Pennsylvania county between 2000
and2003. Black defendants were less likely than
otherdefendants to be released, and female defendantswere
assigned lower bail amounts than males(Freiburger, Marcum,
& Pierce, 2010). These resultsare consistent with thefocal
concerns
perspective,whichproposesthatjudgesperceiveBlackoffendersas
more dangerous and blameworthy than
Whites,andfemaleoffendersaslessdangerousandblame-worthy
than males. These perceptions affect judges’bail decisions.
Psychologists have assessed the cognitive pro-cesses that judges
use in determining whether bailshould be allowed. In some
studies, judges respondto simulated cases presented as
vignettes. In otherstudies, researchers observe judges dealing
with realcases in the courtroom (Dhami, 2003; Dhami &Ayton,
2001). In both settings, judges tend to use amental shortcut
called thematching heuristic: Theysearch through a subset of

10. available case informationand then make a decision on the basis
of only a smallnumber of factors (for example, offense severity
andprior record), often ignoring other seemingly
relevantinformation. This is not especially surprising;
judges’large caseloads force them to make fast decisions,
andpeople often use shortcut reasoning strategies whenforced to
think quickly.The opinions of police and prosecutors can
alsosway judges’decisions about bail. Dhami (2003) ana-lyzed
bail-setting decisions in two London courts andfound that the
prosecutor’s request and the positionof the police strongly
influenced the judge’s choices.Judges were less swayed by an
offender’s risk of com-mitting further crimes while out of jail
(Dhami, 2005),raising questions about whether judges are
sufficientlyconcerned about society’s right to be protected
againstthe harm caused by defendants on bail. Finally,although
judges were highly confident that they hadmade the appropriate
decisions (the overconfidencebias), there was significant
disagreement among judgeswho responded to the same
simulated fact patterns,raising troubling questions of fairness
and equality.Does Pretrial Release AffectTrial Outcome?What if
the defendant cannot provide bail andremains in jail until the
time of trial? Does this pretrialdetention affect the trial’s
outcome? Clearly, yes.Defendants who are detained in jail are
more likelyto plead guilty or be convicted and to receive
longersentences than those who can afford bail, even whenthe
seriousness of their offenses and the evidenceagainst them are
the same (Kellough & Wortley,2002). Some data suggest that
prosecutors use pretrialdetention as a“resource”to encourage (or
coerce)guilty pleas. Pretrial detention is likely to cost defen-
dants their jobs, making it harder for them to payattorneys—so
the threat of it may make them morelikely to plead guilty.
Among defendants who actuallygo to trial, an accused person
who is free on bailfinds it easier to gather witnesses and prepare
adefense. A jailed defendant cannot go to his or herattorney’s
office for meetings, has less time with his orher attorney to
prepare for trial, and has less access torecords and witnesses.

11. Detention also corrodes familyand community ties.Can High-
Risk DefendantsBe Identified?Around 1970, a push began for
legislation that wouldincrease the use ofpreventive
detention—thedetention of accused persons who pose a risk of
flightor dangerousness. Civil libertarians oppose
preventivedetention because it conflicts with the
fundamentalassumption that a defendant is innocent until
provenguilty. But most citizens approve, valuing society’sneed
to be protected from possible future harm overthe rights of
individual suspects to be free until provenguilty. Although the
preventive detention of sus-pected terrorists is controversial,
many people believethat the risk of a large-scale attack similar
to 9/11outweighs suspects’individual rights. The
U.S.Supreme Court has taken the view that preventivedetention
is not a punishment, but rather a regulatoryaction (like a
quarantine) for the public’s protection.Preventive detention
assumes that valid assess-ments of risk and accurate predictions
of future dan-gerous conduct can be made, an assumption that
isnot always correct (Heilbrun, 2009). Thus, judgeshave
difficulty knowing which defendants are highrisk and which can
be trusted. In Shepherd, Texas,Patrick Dale Walker tried to kill
his girlfriend by put-ting a gun to her head and pulling the
trigger. Theloaded gun failed to fire. Walker’s original bail was
setat $1 million, but after he had been in jail for fourdays, the
presiding judge lowered his bail to $25,000.This permitted
Walker to be released; four monthslater, he fired three bullets at
close range and killedthe same woman. Afterward, the judge did
not thinkhe was wrong in lowering the bail, even though,since
1993, Texas has had a law that permits judgesto consider the
safety of the victim and of the com-munity in determining the
amount of bail. In fact,Patrick Walker had no previous record,
was valedic-torian of his class, and was a college graduate.
Woulda psychologist have done any better in
predictingWalker’s behavior?Mental health professionals now
have the capacityto assess violence risk in some situations,
particularly when using specialized tools (see, e.g., Monahan et

12. al.,2005; Otto & Douglas, 2010). There remains a debateabout
how precise such estimates can be, with someauthors
identifying the limits of specialized tools andstrategies (e.g.,
Hart, Michie, & Cooke, 2007; Kroner,Mills, & Reddon,
2005).PLEA BARGAININGIN CRIMINAL CASESMost
criminal cases—by some accounts, 90–95%—end prior to trial
when the defendant pleads guilty tosome charge, usually in
exchange for a concession bythe prosecutor. The extensive use
of plea bargainingin the criminal justice system illustrates the
dilemmabetween truth and conflict resolution as goals of
ourlegal system.Plea bargaining has been practiced in the
UnitedStates since the middle of the 19th century, and lately
ithas threatened to put the trial system out of business.Of the
estimated 1,132,000 people who were sen-tenced on felony
convictions in 2006, 94% pleadedguilty (Rosenmerkel, Durose,
& Farole, 2009). Inter-estingly, murder defendants were less
likely to pleadguilty than defendants charged with other violent
fel-onies. Guilty pleas were offered by 89% of robberysuspects
but by only 61% of murder suspects. Theharsh sentences
imposed on most convicted mur-derers—often life in prison
without parole—make itworthwhile for murder defendants to go
to trial andhope for sympathetic judges or juries.Both mundane
and serious cases are resolved byplea bargains. In a routine case
that would never havebeen publicized if the defendant had not
been ajudge, Roger Hurley, a judge from Darke County,Ohio,
pled guilty in a domestic violence case. Hewas accused of
grabbing his estranged wife by theneck during an argument and
threatening her with abread knife. According to Hurley, he
accepted a pleabargain in order to get on with his life and end
thehurt and friction that this incident caused his family.In a
more notorious case, James Earl Ray, the assassinof Martin
Luther King, Jr., died in prison while serv-ing a life sentence as
a result of a plea bargain. Theplea deal was not well received:
many thought Rayhad not acted alone, and the plea agreement
meantthat the facts would never be aired in a public forum.After
Ray’s death in 1998, the King family released astatement

13. expressing regret that Ray had never hadhis day in court and the
American people wouldnever learn the truth about King’s
death.The defendant’s part of the bargain requires anadmission
of guilt. This admission relieves the prose-cutor of any
obligation to prove that the defendantcommitted the crimes
charged. The prosecutor’s partof the bargain may involve an
agreement to reducethe number of charges or allow the
defendant toplead guilty to a charge less serious than the
evidencesupports. For example, manslaughter is a lesser
chargethan murder, and many murder prosecutions areresolved
by a plea of guilty to manslaughter.In a common procedure
known ascharge bar-gaining, the prosecutor drops some
charges inexchange for a guilty plea. But charge bargainingmay
lead prosecutors initially to charge the defendantwith more
crimes or with a more serious crime thancould be proven at
trial, as a strategy for enticingdefendants to plead guilty.
Laboratory research usingrole-playing procedures (Gregory,
Mowen, & Linder,1978) indicates that“overcharging”is
effective;research participants were more likely to accept aplea
bargain when more charges were filed againstthem. The
defendants who engage in this type of bar-gaining may win only
hollow victories. Cases in whichprosecutors offer to drop
charges are likely to be onesfor which judges would have
imposed concurrent sen-tences for the multiple convictions
anyway.Plea bargaining may also take the form ofsen-tence
bargaining, in which prosecutors recommendreduced sentences
in return for guilty pleas. Sentenc-ing is the judge’s decision,
and although judges varyin their willingness to follow
prosecutors’recommen-dations, many simply rubber-stamp
prosecutorial sen-tencing recommendations. In general,
defendants canexpect that judges will follow the sentences that
havebeen recommended by a prosecutor, and prosecutorscan
earn the trust of judges by recommending sen-tences that are
reasonable and fair.Why do defendants plead guilty? There are
twoprimary reasons: because the likelihood of convictionis
high, and because, if convicted, they would facelengthy

14. sentences (Bibas, 2004). Some court observerssuspect that
tougher sentencing laws of the past fewdecades have allowed
prosecutors to gain even greaterleverage over criminal
defendants, threatening themwith mandatory or harsh sentences.
So no matterhow convinced defendants are of their innocence,
theytake a risk by turning down plea bargains and facing the
possibility of additional charges or mandatorysentences (Oppel,
2011). We describe one such casein Box 8.3.Defendants have
the final say in any decision orplea. Before accepting a guilty
plea, judges ask defen-dants if they made the decision freely
and of theirown accord. Defense attorneys can have an impact
inthis decision. Their recommendations interact with
thedefendant’s wishes in complex ways to yield a
decision.Defense attorneys gauge whether to recommend a
pleaoffer based on the strength of the evidence against
thedefendant and the severity of the punishment (Brank &Scott,
2012). When the evidence points toward con-viction and the
defendant is facing a lengthy prisonsentence, defense attorneys
will recommend stronglythat defendants accept plea offers.At
least in some circumstances, defense attorneysalso take their
clients’preferences into account. Kramer,Wolbransky, and
Heilbrun (2007) had attorneysread vignettes that varied the
strength of the evidenceagainst a hypothetical defendant, the
potential sen-tence if convicted, and the defendant’s
wishes.When the probability of conviction was high andthe
likely prison sentence was long, attorneys stronglyrecommended
the plea offer, regardless of the defen-dant’s desires. But when
the probability of convictionwas low and the prison sentence
was short, attorneyswere willing to consider the defendant’s
wish to pro-ceed to trial.Unfortunately, zealous representation
by defenseattorneys in plea negotiations may not apply to
alldefendants equally. When she asked defense attorneysfrom
across the country to respond to scenarios thatvaried the race of
the defendant, Edkins (2011) foundthat the plea deals attorneys
felt they could secure forCaucasian clients contained shorter
sentences thatthose they felt they could obtain for African

15. Americanclients, even though they were slightly more likely
tothink that the Caucasian clients were guilty. Appar-ently
defense attorneys’own biases may come intoplay when they
advocate for their clients.Defendants plea bargain in order to
obtain lesssevere punishment than they would receive if
theywent to trial and were convicted. But why do prose-cutors
plea bargain? What advantages do they seek,given that they
hold the more powerful position inthis bargaining situation?
Prosecutors are motivated toplea bargain for one or more of the
following reasons:(1) to dispose of cases in which the evidence
againstthe defendant is weak or the defense attorney is
aformidable foe; (2) to ensure a“win”when theiroffice keeps a
record of the“wins”(convictions) and“losses”(acquittals) of each
prosecuting attorney inthe office; (3) to obtain the testimony of
one defen-dant against a more culpable or infamous codefen-
dant; and most importantly, (4) to expedite the flowof cases for
an overworked staff and a clogged courtdocket.Plea bargaining
serves the need of the defenseattorney to appear to gain
something for his orher client and the need of the prosecutor to
appearfair and reasonable. Both prosecutors and defense
attorneys believe they are making the“punishment fitthe
crime”by individualizing the law to fit the cir-cumstances of the
case, and both are comfortable witha system in which most
cases are resolved without a clearwinner or clear loser.
Experienced prosecutors anddefense attorneys teach plea
bargaining to the rookiesin their offices, and lawyers from both
sides engage in aritual of give and take, with changing facts and
person-alities but with the same posturing and
rationalizations.In fact, the procedures are so well known that in
somecases no formal bargaining even takes place;
everyoneinvolved—prosecutor, defense attorney, defendant,
andjudge—knows the prevailing“rate”for a given crime,and if
the defendant pleads guilty to that crime, the rateis the price
that will be paid.Psychological Influences on thePlea-
Bargaining ProcessAlthough there are few empirical studies of
plea bar-gaining, we can generalize from other

16. bargainingsituations to understand the role of psychological fac-
tors in the process (McAllister, 2008). One
factorconcernsframing effects. Psychologists who studydecision
making have learned that the way decisionalternatives are
presented (or framed)—as eithergainsorlosses—can have a
significant impact on a person’schoice. Individuals are more
willing to take chanceswhen the decision alternatives are
presented in termsof gains rather than losses. Imagine that two
defen-dants have been charged with the same crime, eachhas a
50% chance of being convicted at trial, and, ifconvicted, each is
likely to be sentenced to 20 years inprison. The prosecutor has
offered both defendants adeal that would result in only 10 years
imprisonmentin exchange for a guilty plea. Now imagine
thatDefendant A’s options are framed as againand Defen-dant
B’s options are framed as aloss. Defendant A istold that if he
went to trial, there would be a 50%chance that he would be
acquitted andgain 10 yearsoutside of prison compared to the
plea-bargain offer.Defendant B is told that if he went to trial,
therewould be a 50% chance that he would be convictedandlose
an additional 10 yearsof life in prison com-pared to the plea-
bargain offer. Although the twosituations are identical except
for the decision frame,Defendant A is more likely to take his
chance at trialand Defendant B is more likely to take the plea
bar-gain to avoid a loss.Other psychological factors affect and
sometimesdistort offenders’and attorneys’decisions
concerningplea bargains. In general, people tend to be
toooptimistic about their chances of securing favorableoutcomes
and are therefore overconfident. Theover-confidence
biassuggests that because defendants andtheir attorneys believe
(incorrectly) that they have achance to win at trial, they might
reject reasonableoffers from prosecutors.Overconfidence skews
beliefs about the likeli-hood of acquittal. Denial mechanisms
affect thoughtsabout one’s guilt and the chances for successful
plea-bargain arrangements. Offenders often have
difficultyacknowledging guilt to their attorneys; some
cannoteven admit it to themselves (Bibas, 2004). Thinkingabout

17. one’s immoral or illegal actions is painful anddepressing, and
denial mechanisms allow people toavoid dealing with those
thoughts. But denial resultsin minimizing the harm caused to
others and anunwillingness to accept responsibility for
wrongdoing.Defendants in denial are unlikely to take a plea bar-
gain even when it is advantageous for them to do so.Attorneys
also tend to be overconfident of theirability to predict case
outcomes (Goodman-Delahunty, Granhag, Hartwig, & Loftus,
2010), ren-dering them less than stellar tellers of the future.
Theiroverconfidence stems from a variety of factors,including
the absence of feedback on the accuracy ofmost predictions
(90–95% of cases are never tried!);the belief in their
professional prowess; and the relatedillusion that with hard
work and perseverance, they cancontrol the outcome of events
(Greene & Bornstein,2011).Evaluations of Plea BargainingThe
U.S. Supreme Court has called plea bargaining“an essential
component of the administration of jus-tice”(Santobello v. New
York, 1971), and has statedthat defendants have a constitutional
right to effectiverepresentation in plea negotiations, including
compe-tent advice and information about
prosecutors’offers(Lafler v. Cooper, 2012). Still, plea
bargaining remains acontroversial procedure. It has been
defended as anecessary and useful part of the criminal justice
system(American Bar Association, 1993), and condemned asa
practice that should be abolished from our courts(Lynch, 2003).
Advocates justify the procedure bypointing out that guilty pleas
lessen the backlog ofcases that would otherwise engulf the
courts; facilitate the prosecution of other offenders; and reduce
theinvolvement of criminal justice participants, including(in
addition to judges and attorneys) police officerswho don’t have
to spend hours in court testifying,and victims who are spared
the trauma of a trial.Critics urge the abolition of plea
bargaining.They claim that (1) improper sentences—
sometimestoo harsh but more often too lenient—are likely;
(2)plea bargaining encourages defendants to surrendertheir
constitutional rights; (3) prosecutors exert toomuch power in

18. negotiating guilty pleas; and (4) inno-cent defendants might feel
coerced to plead guiltybecause they fear the more severe
consequences ofbeing convicted by a jury.Data on these
contentions are limited, but theavailable evidence suggests
that plea bargainingworks as advertised. Defendants who are
convictedat trial do indeed suffer more severe sanctions
thanthose who accept plea bargains. In 2006, 89% offelons
convicted during a trial were sentenced to jailor prison,
compared with only 76% of those whocommitted the same crime
and accepted plea bar-gains. In addition, judges imposed longer
sentenceson offenders who went to trial (an average sentenceof
8 years and 4 months) than on those who pledguilty (an average
sentence of 3 years and 11 months)(Rosenmerkel et al.,
2009).There may be some“dark sides”to plea bargain-ing,
however. It is troubling that adolescent defen-dants may lack
the comprehension skills necessary tointelligently weigh the
trade-offs inherent in pleabargaining and to consider the long-
term conse-quences of their decisions (Redlich, 2010). In
fact,adolescents may be more likely than adults to acceptguilty
pleas (Grisso et al., 2003), and among adoles-cents aged 11–13,
the decision to accept a plea bar-gain is unrelated to the
strength of the evidenceagainst them (Viljoen, Klaver, &
Roesch, 2005).Plea bargaining may also work against the long-
range goal of achieving justice. It may prevent thefamilies of
victims from seeing the defendants“getjustice”or hearing them
acknowledge full responsi-bility for their offenses. In 2000, a
Missouri man,Terrance Wainwright, was sentenced to life
withoutparole plus 90 years for killing his wife and her 15-year-
old daughter. The case seemed closed. But dur-ing the appeals
process five years later, a prosecutoroffered Wainwright a deal
to plead guilty to a lessercharge and a reduced sentence,
infuriating familymembers of the victims. According to the
father ofthe 15-year-old girl, the prosecutor proposed thedeal
without ever consulting him. To address thisconcern,
victims’rights legislation increasingly ensuresthat the victim or
his or her family has a say in pleabargaining, and some states

19. now involve victims inthe plea-bargaining process.Finally, it is
troubling that cases are not alwaysresolved in line with the
gravity of the offense.When these“errors”are in the direction of
sentenc-ing leniency, they often are attributed to a
perceivedoverload in the prosecutor’s office or the courts.
Adefendant should not be able to plead to a greatlyreduced
charge simply because the criminal justicesystem lacks the
resources to handle the case. How-ever, the answer to problems
of unwarranted leniencyis not the abolition of plea bargaining;
rather, ade-quate funding must be provided for the court
system,as well as for the correctional system, so that
whensevere penalties are necessary, severe penalties can
begiven. In the long run, if plea bargaining serves pri-marily as
a method for managing the underfundedbudgets of our courts
and correctional systems, itwill cease to be a bargain in the
larger sense andwill become, instead, too great a price for our
societyto pay.SETTLEMENTS IN CIVIL CASESJust as most
criminal cases are resolved through plea-bargaining procedures
prior to trial, the vast majorityof civil disputes are also resolved
(or settled) without atrial, typically in private negotiations
between attor-neys representing the disputing parties. This
process isknown assettlement negotiation. (Attorneys
alsonegotiate with insurers, regulators, and sometimeseven with
their own clients in an attempt to settle adispute.) Most
divorces, landlord–tenant disputes,claims of employment
discrimination, and accidentcases are resolved without a
trial.Large class-action lawsuits that may involve hun-dreds or
thousands of plaintiffs are also typicallyresolved in settlement
negotiations. In 2012, attorneysrepresenting the oil giant BP
and more than 100,000Gulf Coast residents and businesses
affected by the2010 Deepwater Horizon oil spill reached a
settle-ment that eliminated the threat of a trial. One com-
mentator suggested that as lawsuits go,“this wasgoing to be the
Super Bowl wrapped up in the World Series—only with much,
much more moneyat stake”(Walsh, 2012).Lawyers spend
considerable time negotiating set-tlements because they would

20. almost always prefer thecertainty of a negotiated compromise to
the uncer-tainty of a jury trial. Because their caseload
(ordocket) is so large, judges would always prefer thatthe
participants in a civil dispute resolve their differ-ences
themselves, without using the considerableresources necessary
for a trial.Disputing parties obviously have different objec-tives
in settlement negotiations. Hence, the attorneysrepresenting
these parties will have very different rolesto play in the
negotiation. In a personal injury case, acommon type of civil
dispute, plaintiffs’lawyers willtry to extract every dollar that a
defendant will pay,whereas defendants’lawyers will try to avoid
payingall but the minimal cost necessary to settle the case. Inthe
Deepwater Horizon case, plaintiffs’attorneyswere motivated to
avoid years of uncertain litigationand the possibility of
obtaining less money for theirclients than they would receive in
the settlement, andattorneys representing BP opted to settle in
order toavoid having the company’s mistakes paraded in
opencourt, particularly in light of ongoing litigation
withfederal, state, and local governments.Some lawyers have
become highly skilled atnegotiating settlements. Consider, for
example, thecase of Valerie Lakey, who, at age 5, was
disembow-eled by the suction power of a pool drain pump pro-
duced by Sta-Rite Industries. Valerie sat on an openpool drain
after other children removed the protec-tive cover that a swim
club had failed to install prop-erly. Despite 12 prior suits with
similar claims, Sta-Rite continued to make and sell drain covers
lackinginstallation warnings. Former North Carolina senatorand
presidential hopeful John Edwards served as theattorney for
plaintiffs Valerie Lakey and her family.After lengthy
negotiations that continued“backstage”throughout the trial, Sta-
Rite eventually settled andthe Lakey family received $25
million, the largest per-sonal injury award in North Carolina
history.What makes some lawyers so skilled at negotiat-ing and
winning such large damages? Do they have aknack for deciding
whether a case is worth pursuingand an ability to assess
accurately what it might beworth? Do they have a particular

21. interpersonal stylethat facilitates compromise? Or do they have
espe-cially shiny crystal balls? In recent years,
psychologists,economists, and game theorists (scientists who
studybehavior in strategic situations) have conducted stud-ies of
actual and simulated settlement negotiations(though they have
yet to study the crystal-ballhypothesis!) to determine what
factors predict settle-ment amounts.Factors That
DetermineSettlement AmountsThe legal merits of the case
matter most, of course. Inan automobile accident case in which
there is strongevidence of the defendant’s reckless driving and
inwhich there are obvious and severe injuries, a plaintiffwill
recover more money than will a plaintiff whosecase is weak on
liability or damages. But other factors matter as well.
Negotiationtheory suggests that outcomes are also influenced
bythe negotiators’reservation price, or bottom line(Korobkin &
Doherty, 2009). The defendant’s reser-vation price is
themaximumamount of money that heor she would be willing to
pay to reach an agreement,whereas the plaintiff’s reservation
price is theminimumamount of money that he or she would
accept tosettle the claim. Say that a plaintiff was injuredwhen a
piece of machinery malfunctioned, injuringhim or her and
resulting in medical and other costsof approximately $100,000.
The defendant manufac-turer may set a reservation price of
$75,000, authoriz-ing the defense attorney to negotiate a
settlement thatdoes not exceed that amount, while the plaintiff
mayset a reservation price of $25,000, meaning that he orshe
will accept nothing less. Though the parties arenot initially
aware of one another’s reservation prices,they have a
$50,000“bargaining zone”in which tonegotiate a compromise. If
they fail to reach a com-promise, negotiators walk away from
the bargainingtable and the case goes to trial. Various
psychologicalfactors influence reservation points, including
percep-tions of the likely outcome if the case goes to trial
andnegotiators’goals and views on the merits of the case.In
considering the merits of their case, plaintiffs,defendants, and
attorneys alike are influenced by psy-chological biases, often

22. referred to asheuristics(Greene & Ellis, 2007; Kahneman, 2011).
One suchheuristic, theself-serving bias, occurs when
peopleinterpret information or make decisions in ways thatare
consistent with their own interests, rather than inan objective
fashion. When evaluating their cases,involved parties often have
difficulty seeing the meritsof the other side, believing that the
evidence favorstheir position and that the fairest resolution is
one thatrewards them. For example, laypeople who wereasked to
play the role of either the plaintiff or defen-dant in a personal
injury case involving an automo-bile–motorcycle collision and
to assess the value of thecase exhibited the self-serving bias.
Although all par-ticipants had the same information, those who
evalu-ated the case from the perspective of the plaintiffbelieved
a fair settlement in the case was, on average,nearly $18,000
more than the amount suggested bythe“defense”(Loewenstein,
Issacharoff, Camerer, &Babcock, 1993). Self-serving biases can
also lead toimpasse because people who are unable to take
theperspective of their negotiation opponents are lesslikely to
successfully reach a deal than those who areable to take their
opponents’perspective (Galinsky,Maddux, Gilin, & White,
2008).Another heuristic, termed theanchoring andadjustment
bias, occurs when negotiators arestrongly influenced
(“anchored”) by an initial startingvalue and when, in subsequent
discussion, they donot sufficiently adjust their judgments away
fromthis starting point. This bias is quite pervasive, andeven
wildly extreme anchors can influence judg-ments. People
provided higher estimates of the aver-age temperature in San
Francisco when first askedwhether it was higher or lower than
558 degrees, anumber that may have induced people to consider
the(unlikely) possibility that San Francisco temperaturesare
high (cited by Guthrie, Rachlinski, & Wistrich,2001). In the
context of settlement negotiations, thefirst offer can serve to
anchor the final negotiatedcompromise; the higher the offer, the
higher the ulti-mate settlement (Korobkin & Doherty,
2009).Many legal disputes involve intense emotions thatcan also
influence the likelihood of resolution. Imag-ine, for example,

23. the despair and anguish that RachelBarton Pine must have
experienced after beingdragged 200 feet underneath a Chicago
commutertrain in 1995. The then–21-year-old classical
violinprodigy had her left leg severed above the knee, lostpart
of her right foot, and badly injured her right kneeas terrified
passengers tried to alert the engineer to haltthe train. Barton
sued the train company for $30 mil-lion. After several years of
negotiations and 25 opera-tions, she received nearly that amount
and gave asizeable portion to charity.Emotions on the part of
plaintiffs, defendants,and their attorneys all play a role in
negotiation. Theemotion most closely associated with disputes
may beanger; parties involved in settlement discussions
oftenfeel resentment, antagonism, and sometimes outrightfury.
Presumably those expressions would harm thechances for
concessions and compromise, and psycho-logical data suggest
that they do. Higher levels of angeron the part of negotiators are
related to angry responsesfrom the other party (Friedman et al.,
2004), lessregard for one’s adversary (Allred, Mallozzi,
Matsui,& Raia, 1997), and a greater frequency of
impasse(Moore, Kurtzberg, Thompson, & Morris, 1999).Angry
disputants have difficulty resolving their com-peting claims.If
anger tends to inhibit dispute resolution, domore positive
emotions tend to enhance it? Theanswer is yes; positive
emotions such as happiness foster cooperation and concession
making (Kopelman,Rosette, & Thompson, 2006), stimulate
creative prob-lem solving (deVries et al., 2012), increase the
likeli-hood that parties will disclose personal
information(Forgas, 2011), and positively influence
negotiators’expectations (Carnevale, 2008). Experiencing
positiveemotions improves one’s chances for successful settle-
ment negotiations.WHAT IS THE PURPOSE OF A
TRIAL?Sometimes settlement negotiations fail and plea bar-
gains prove to be elusive. In those situations, dispu-tants have
no choice but to have their case resolved ina trial, a topic to
which we devote the remainder ofthis chapter. Every trial, civil
or criminal, presents twocontrasting versions of the truth. Both

24. sides try topresent the“facts”in question in such a way as
toconvince the judge or the jury that their claims aretrue. The
judge or jury must render judgments on theprobable truth or
falsity of each side’s statements andevidence.The jury system
evolved from an ancient ritualduring which a defendant stood
before a priest, sur-rounded by friends who swore that the
defendant hadnot committed the crime. But the victim also
broughtfriends who swore to just the opposite (Kadri,
2005).Because this arrangement was not especially satisfac-tory
to anyone, the English monarchy began to havedefendants
appear in front of a panel of citizens whosetask was to swear to
the innocence or guilt of thedefendant.If one is asked about the
purpose of a moderntrial, the first response might be“to
determine thetruth, of course.”But is this really the prime
functionof a trial? In fact, trials also serve other purposes:
Theyprovide a sense of stability and a way to resolve con-flicts
so that the disputants can receive satisfaction.Many years ago,
Miller and Boster (1977) identifiedthree images of the trial that
reflect these contrastingconceptions and that still hold true
today.The Trial as a Search for the TruthMany people see a trial
as a rule-governed eventinvolving the parties’collective search
for the truth(Miller & Boster, 1977). This view assumes
thatwhat really happened can be clearly ascertained—that
witnesses are capable of knowing, remembering,and describing
events completely and accurately.Although this image of the
trial recognizes that theopposing attorneys present only those
facts that but-tress their positions, it assumes that the truth
willemerge from the confrontation of conflicting facts.It also
assumes that judges or jurors, in weighingthese facts, can“lay
aside their prejudices and precon-ceived views regarding the
case and replace suchbiases with a dispassionate analysis of the
argumentsand evidence”(Miller & Boster, 1977, p. 25).But this
image of the trial as a rational, rule-governed event has been
challenged on severalgrounds. Eyewitnesses are not always
thorough and accurate reporters, as the legal system would like
tobelieve. Interrogations can sometimes result in

25. falseconfessions, and jurors are not particularly good
atdistinguishing false confessions from true confessions.Jurors
may have difficulty setting aside their ownexperiences and
prejudices. Although this image ofthe trial remains as an
inspiring ideal, other imagesneed to be considered as well.The
Trial as a Test of CredibilityA second conception—that the trial
is a test of credi-bility—acknowledges that facts and evidence
arealways incomplete and biased. Hence the decisionmakers,
whether judge or jury, must not only weighthe information and
evidence but also evaluate thetruthfulness of the opposing
sources of evidence(Miller & Boster, 1977). They must focus on
theway evidence is presented, the qualifications of wit-nesses,
and the inconsistencies between witnesses.Competence and
trustworthiness of witnesses takeon added importance in this
image.The image of the trial as a test of credibility alsohas
problems. Both judges and jurors can makeunwarranted
inferences about witnesses and attorneyson the basis of race,
gender, mannerisms, or style ofspeech. Judges’and
jurors’judgments of credibilitymay be based more on
stereotypes, folklore, or“commonsense intuition”than on the
facts.The Trial as a Conflict-Resolving RitualThe first two
images share the belief that the primaryfunction of a trial is to
produce the most nearly validjudgment about the guilt of a
criminal defendant orthe responsibility of a civil defendant. The
third imageshifts the function of the trial from determining
thetruth to providing a mechanism to resolve controver-sies.
Miller and Boster (1977) express it this way:“Atthe risk of
oversimplification we suggest that itremoves primary attention
from the concept of doingjustice and transfers it to the
psychological realm ofcreating a sense that justice is being
done”(p. 34). Truthremains a goal, but participants in the trial
process alsoneed both the opportunity to have their“day in
court”and the reassurance that, whatever the outcome,“jus-tice
was done.”In other words, they need closure thatonly a trial can
provide.A trial conducted in Oklahoma in 2004 exempli-fied
this desire for closure. Several years before,Oklahoma City

26. bombing suspect Terry Nichols wasconvicted on federal charges
and sentenced to life inprison, rather than to death (his
codefendant, TimothyMcVeigh, was executed in 2001). An
Oklahomaprosecutor, responding to some victims’families
whowere eager to see Nichols also put to death, chargedhim in
state court with 161 counts of first-degreemurder (for the 160
people and 1 fetus who werekilled in the blast) and requested
the death penalty.But Nichols was again spared execution when
thissecond jury, despite convicting him, deadlockedover his
sentence. By law, Nichols was sentenced(again) to life in
prison—161 consecutive life sen-tences, to be exact—and those
families hoping forclosure were disappointed (again).The
stabilizing function of a trial is worthless,of course, if the
public doubts that justice was donein the process. That sense of
closure is sometimesmissing after a trial; the widespread
dissatisfaction insome segments of our society with the outcome
ofO. J. Simpson’s murder trial (Brigham & Wasserman,1999)
ensured continued media interest and publicfascination with his
actions and statements. The beliefthat“he got away with
murder”even led to proposalsto reform and restrict the jury
system. Other segmentsof society were equally dissatisfied with
the verdictin Simpson’s civil trial, in which he was found
liablefor the deaths of his ex-wife and her friend
RonaldGoldman. Perhaps together, the verdicts in the twotrials
converged on a reasonable outcome—Simpsonprobably was the
killer, but this couldn’t be provenbeyond a reasonable doubt,
the level of certaintyrequired for a criminal conviction.These
three contrasting images remind us thattruth in the legal system
is elusive, and that truth see-kers are subject to human error,
even though the sys-tem seems to assume that they approach
infallibility.The failure to achieve perfection in our decision
mak-ing will become evident as we review the steps in thetrial
process.STEPS IN THE TRIAL PROCESSIn the next section,
we sketch out the usual steps ina trial in brief detail. Though
some of these proce-dures are conducted out of the public eye,
they allinvolve—either implicitly or explicitly—issues

27. ofinterest to psychologists. Preliminary ActionsDiscovery is the
pretrial process by which each sidetries to gain vital
information about the case that willbe presented by the other
side. This informationincludes statements by witnesses,
police records,documents, material possessions,
experts’opinions,and anything else relevant to the case.The U.S.
Constitution provides criminal defen-dants with the right to
have the charges against themjudged by a jury of their peers,
though a defendantcan decide instead to have the case decided
by ajudge. If the trial is before a jury, the selection ofjurors
involves a two-step process. The first step isto draw a panel of
prospective jurors, called avenire,from a large list (usually
based on lists of registeredvoters and licensed drivers). Once
the venire for aparticular trial has been selected—this may be
any-where from 30 to 200 people, depending on thecustomary
practices of that jurisdiction and thenature of the trial—a
process known asvoir direisemployed to question and select the
eventual jurors.Prospective jurors who reveal biases and are
unableto be open-minded about the case are dismissedfrom
service, so the task of jury selection is reallyone of elimination.
Prospective jurors who appearfree of these limitations are
thus“selected.”Voirdire can have important effects on the
outcome ofthe trial.The TrialAll trials—whether related to
criminal law or to civillaw—include similar procedural steps.
At the begin-ning of the trial itself, lawyers for each side are
per-mitted to makeopening statements. These are notpart of the
evidence, but they serve as overviews ofthe evidence to be
presented. The prosecution orplaintiff usually goes first,
because this side is the onethat brought charges and bears the
burden of proof.Attorneys for the defendant, in either a criminal
orcivil trial, can choose to present their opening state-ment
immediately after the other side’s opening state-ment or to wait
until it is their turn to presentevidence.Some psychologists have
wondered whether thetiming of the opening statement matters.
In otherwords, would it be preferable for the defense
attorney(and more beneficial to the defendant) if thedefense’s

28. opening statement immediately followedthe prosecutor’s
opening statement or would it bebetter for the defense attorney
to wait until all ofthe prosecution witnesses have testified?
Their study,using a mock jury simulation, varied the timing of
thedefense opening statement in an auto theft case(Wells,
Wrightsman, & Miene, 1985). The resultswere striking: When
the defense opening statementwas given earlier rather than later,
verdicts were morefavorable to the defense, and the perceived
effective-ness of the defense attorney was enhanced.
Defenseattorneys who take their first opportunity to make
anopening statement can apparently counter the storytold by the
prosecutor, or at least urge jurors to con-sider an alternative
interpretation of the evidence.After opening statements, the
prosecution orplaintiff calls its witnesses. Each witness
testifiesunder oath, with the threat of a charge ofperjuryif the
witness fails to be truthful. That witness is thencross-examined
by the opposing attorney, after whichthe original attorney has a
chance forredirect ques-tioning. Redirect questioning is likely if
the originalattorney feels the opposition has“impeached”his
orher witness;impeachmentin this context refers to across-
examination that has effectively called intoquestion the
credibility (or reliability) of the witness.The purpose of redirect
examination is to“reha-bilitate”the witness, or to salvage his or
her originaltestimony. The defense, however, has one
morechance to question the witness, a process
calledrecross(short for“re-cross-examination”). After
theprosecution or plaintiff’s attorneys have presented alltheir
witnesses, it is the defense’s turn. The same pro-cedure of
direct examination, cross-examination,redirect, and recross is
used. After both sides havepresented their witnesses, one or
both may decideto introduce additional evidence and witnesses
andso ask the judge for permission to presentrebuttalevidence,
which attempts to counteract or disproveevidence given by an
earlier witness.Once all the evidence has been presented,
eachside is permitted to make aclosing argument, alsocalled a
summation. Although jurisdictions vary, typ-ically the

29. prosecution or plaintiff gets the first summa-tion, followed by
the defense, after which theprosecution or plaintiff responds and
has the finalword.The final step in the jury trial is for the judge
togive instructions to the jury. (In some states, instruc-tions
precede the closing arguments.) The judgeinforms the jury of
the relevant law. For example, a definition of the crime is
given, as well as a statementof what elements must be present
for it to haveoccurred—that is, whether the defendant had
themotive and the opportunity to commit the crime.The judge
also instructs jurors about the standardthey should use to weigh
the evidence.With criminal charges, the jurors must be con-
vinced beyond a reasonable doubt that the defendantis guilty
before they vote to convict. Although theconcept of“reasonable
doubt”is difficult to interpret,generally it means that jurors
should be strongly con-vinced (but not necessarily convinced
beyondalldoubt). Each of us interprets such an instruction dif-
ferently, and this instruction is often a source of con-fusion and
frustration among jurors.In a civil trial, in which one party
brings a claimagainst another, a different standard is used.
Apre-ponderance of evidenceis all that is necessary for afinding
in favor of one side. Usually, judges and attor-neys translate
this to mean“Even if you find the evi-dence favoring one side to
be only slightly moreconvincing than the other side’s, rule in
favor of thatside.”Preponderance is sometimes interpreted
asmeaning at least 51% of the evidence, though it isdifficult
(and potentially misleading) to quantify aconcept that is
expressed verbally.The jury is sometimes given instructions on
howto deliberate, but these are usually sparse. Jurors
areexcused to the deliberation room, and no one—noteven the
bailiff or the judge—can be present duringor eavesdrop on their
deliberations. When the juryhas reached its verdict, its
foreperson informs the bai-liff, who informs the judge, who in
turn reconvenesthe attorneys and defendants (and plaintiffs in a
civiltrial) for announcement of the verdict.Now that we have
detailed the steps involved intrials, we consider the advantages
accorded by theseprocedures to the prosecution and the defense

30. incriminal trials. You will notice that opposing sideshave
roughly offsetting advantages. For example, theprosecution gets
the first and last chance to address thejudge or jury, but it also
has the burden of proving itscase. The defense, on the other
hand, is not given theopportunity to speak first or to speak last.
But it hasthe advantage of not needing to prove anything tothe
judge or jury. If the prosecution is unable tomeet its obligation
to convince the judge or jury ofthe defendant’s guilt, then the
defendant prevails.What other advantages does each side have
in a crim-inal case?The prosecution, in its efforts to convict
wrong-doers and seek justice, has several advantages, includ-
ing these:1. It has the full resources of the government at
itsdisposal to carry out a prosecution. Detectives canlocate
witnesses and subpoena them. The prose-cutor can request
testimony from chemists, fin-gerprint examiners, medical
examiners,psychiatrists, photographers, or other
appropriateexperts.2. In the trial itself, the prosecution presents
itsevidence before the defense, getting“first crack”at the jury.
At the end of the trial, when bothsides are permitted closing
arguments, the prose-cution again gets to go first and also gets
thechance to offer a final rebuttal to the defenseattorney’s
closing argument. Therefore, theprosecution has the advantages
of bothprimacyandrecencyin its attempts at jury persuasion,
andresearch shows that information presented first(primacy) and
last (recency) has more persuasiveinfluence than information
presented in themiddle of a discussion.Trial procedures also
provide defendants withcertain benefits, including the
following:1. The defense is entitled to“discovery”; the pros-
ecution must turn over all exculpatory evidence(evidence that
would tend to absolve the defen-dant), but the defense does not
have to turn overall incriminating evidence.2. If a trial is
before a jury, the defense may havemore opportunities than the
prosecution toremove potential jurors without giving a reason.3.
Defendants do not have to take the stand aswitnesses on their
own behalf. In fact, they donot have to put on any defense at
all; the burdenis on the prosecution to prove beyond a reason-

31. able doubt that the defendant is guilty of thecrime.4.
Defendants who are found not guilty can neverbe tried again for
that specific crime. For exam-ple, retired National Basketball
Association starJayson Williams was acquitted on the charge
ofaggravated manslaughter in the death of achauffeur at his
mansion. (In a confusing verdict,the jury convicted Williams of
trying to cover upthe man’s death by describing it as a suicide,
hindering apprehension, and fabricatingevidence.) But even if
clear evidence of Williams’guilt on the manslaughter charge
comes to lightat some time in the future, he can never beretried
for that offense.SentencingIf the defendant in a criminal trial is
deemed guilty, apunishment must be decided. In the vast
majority ofjurisdictions, the trial judge decides punishment.
Inthe past, judges have had wide discretion to imposesentences
by taking into account all they knew aboutthe defendant and his
actions, regardless of whetherthose actions constituted a crime
or were proven to ajury. But in a landmark 2004 decision, the
U.S.Supreme Court ruled that judges may not
increasedefendants’sentences on the basis of what they per-
ceive as aggravating factors (circumstances that seemto make
the“crime”worse). InBlakely v. Washington(2004), the Court
reserved those determinations forjuries.The ruling came from a
case in which the defen-dant, Ralph Blakely, pled guilty to
kidnapping hisestranged wife, a crime that carried a penalty of
53months. But the judge, after deciding that Blakelyacted
with“deliberate cruelty”—a circumstance thatBlakely had not
admitted and that no jury haddecided—increased his sentence to
90 months. Inoverturning this sentence (and thereby striking
downdozens of state sentencing laws and affecting thousandsof
cases), the Court said the imposition of additionaltime violated
Mr. Blakely’s right to a jury trial.In a handful of states,
sentencing is determined bya jury. After the verdict is rendered,
the jury is recon-vened, and attorneys present evidence relevant
to thesentencing decision. The jury then deliberates until
itagrees on a recommended punishment. In casesinvolving the
death penalty, jurors, rather than judges,decide the sentence

32. (Ring v. Arizona, 2002).The Appellate ProcessInvolvement of
guilty defendants within the legal sys-tem does not end when
they are sentenced to a prisonterm or to probation. To protect
the rights of thosewho may have been convicted unjustly,
society grantsany defendant the opportunity to appeal a verdict
to ahigher level of court. Appeals are also possible in vir-tually
every civil suit.As in earlier steps in the legal process, a
conflict ofvalues occurs as appeals are pursued. One goal
isequality before the law—that is, to administer
justiceconsistently and fairly. But appellate courts also try tobe
sensitive to individual differences in what at firstglance appear
to be similar cases. Appellate courts rec-ognize that judges and
juries can make errors. Theappellate process can correct
mistakes that impair thefairness of trials; it also helps promote a
level of con-sistency in trial procedures.When a decision is
appealed to a higher court,the appellate judges read the
transcript of the trialproceedings, the motions and
accompanying docu-ments filed by the attorneys, and written
arguments,called briefs, from both sides about the issues
onappeal. They then decide whether to overturn theoriginal trial
decision or to let it stand. Appellatejudges rarely reverse a
verdict on the basis of thefacts of the case or the apparent
legitimacy of thatverdict. When they do reverse a verdict, it is
usuallybecause they believe that the trial judge made
aprocedural error, such as allowing controversialevidence to be
presented or failing to allow thejury to consider some evidence
that should havebeen included.If a verdict in a criminal trial is
overturned orreversed, the appeals court will either order a
retrialor order that the charges be thrown out. In reviewingthe
decision in a civil case, an appellate court can let thedecision
stand, reverse it (rule in favor of the side thatlost rather than the
side that won), or make someother changes in the decision and
remand (return)the case to a lower court for reconsideration.
Onepossible conclusion in either civil or criminal appealsis that
certain evidence should not have been admit-ted or that certain
instructions should not have beengiven; hence, a new trial may

33. be ordered.Psychologists have had relatively little to say
aboutthe appellate process. Recent exceptions include abook
about psychological aspects of Supreme Courtdecision making
(Wrightsman, 2006) and a study ofhow judges assess whether
prior rulings allowing con-fessions to be included in trials
constituted reversibleerror (Wallace & Kassin, 2012).Courtroom
of the FutureWith only minor variations, courtroom trials
andappeals have followed these procedures for much ofour
nation’s history. The trials of John Scopes (tried in 1925 for
teaching the theory of evolution in aTennessee public school
science class), Julius andEthel Rosenberg (tried in 1951 on
espionage charges),and defendants facing charges across the
United Statestoday all follow essentially the same format.
Butrecently, the introduction of emerging technologiesinto the
legal system has begun to change the lookof trials. Today, juries
and judges expect attorneys touse more than yellow legal pads
and grainy videos.Many jurors, especially younger jurors and
thosewho are more tech-savvy, now expect to see andhear
multimedia approaches (Griffin, 2008), andsome judges want all
documents presented during atrial to be scanned and displayed
electronically. Thecourtroom of the future will look very
different fromthat of the past; some contend that it already
does(Feigenson & Spiesel, 2009).Technologies being used in
courts these daysextend far beyond surveillance videos, which
wouldhave been novel only a few years ago. Newer tech-
nologies include■videoconferencing that permits live, two-
wayvideo and audio communication between hear-ings and trials
in courtrooms and remote sites—useful when witnesses and
defendants are medi-cally incapacitated, incarcerated, or
unavailableduring the trial.■electronic and digital evidence,
such as digitalrecordings, documents, and photographs,
thatallows judges and jurors to easily observe theevidence
themselves, rather than hear others’descriptions of it.■computer
animations and simulations that featurecomputer-generated
depictions of complexphysical events like accidents and crimes,
oftenaccompanied by voice-overs from participants inthe

34. event.■virtual environment technologies that allowobservers to
experience a re-creation of an eventas if they were actually
present when it occurred.Using video game technology, so-
called“virtualreality”allows judges and jurors to
virtually“walk”through a crime scene or accident site togauge
for themselves what could be seen fromdifferent points of view
and under relevantlighting conditions.Each of these high-tech
methods raises interestingand complex psychological questions.
What effectdoes remote viewing have on a judge or juror’s
abilityto determine whether a witness is credible and sin-cere?
Are nuances of body language and verbalexpression adequately
captured in videoconferencing,or are they missing? Does the
person testifying at aremote site—a setting that lacks the
trappings andformality of a courtroom—feel less obligated
toshow respect and tell the truth? Would courtroomparticipants
with high-tech experience put moreemphasis than others on
digital media presented dur-ing a trial? Would their opinions
carry more weight inthe deliberation room? Do computer
animations,simulations, and virtual reality reenactments make
dif-ficult or technical concepts easier to visualize and,hence, to
understand? Might they also serve tocement one version of a
contested event in observers’minds, making it harder to
construe alternative expla-nations? In other words, might
observers assume thatanimations, simulations, and virtual
realities representtrue and uncontroversial facts, rather than just
oneparty’s theory of the case (Wiggins, 2006)?Lawyers and
judges should be especially inter-ested in the answers to these
questions becauseaccording to the Federal Rules of Evidence
(2009),evidence may not be introduced into a trial if
itsprobative value(relevance to legal proof) is out-weighed by
any prejudicial effects on the opposingparty or if it misleads or
confuses the jury (Feigenson,2010). Thus, it is imperative that
judges have goodinformation about the effects of high-tech
evidencepresentations on legal judgments.Psychologists have
begun to address some ofthese questions. One study examined
the effectsof computer animations on jurors’verdicts

35. (Dunn,Salovey, & Feigenson, 2006). In cases involving aplane
crash and an automobile accident, mock jurorssaw either a
computer-animated display of the crashsite or a diagram of the
scene. Further, the use ofanimations and diagrams by the
plaintiff and defen-dant was varied, resulting in four versions of
the mocktrial: (1) plaintiff animation/defendant animation,(2)
plaintiff animation/defendant diagram, (3)
plaintiffdiagram/defendant animation,and (4) plaintiff
diagram/defendant diagram.The results of these variations on
verdicts in theplane crash case were unambiguous: When the
plain-tiff presented an animation and the defendant hadonly a
diagram, 68% of jurors voted in favor of theplaintiff, whereas
when both plaintiff and defendantused diagrams, only 32%
sided with the plaintiff. At least in this case, the animation
increased the easeby which participants could visualize the
events lead-ing up to the crash, allowing the plaintiff to
persuadethem about the merits of his case. Interestingly, in
thecar accident case, the animations had far less impact
onjurors’verdicts, probably because few of us need helpin
visualizing automobile accidents. From this studywe can
conclude that animations have a strongerimpact on judgments
when the subject matter is rela-tively unfamiliar to viewers and
when only one sideuses that evidence (Feigenson, 2010).Why do
animations persuade people in ways thatdiagrams cannot? Basic
psychological theorizing aboutthevividness effectsuggests that
information has agreater impact on judgments and decisions
when it isvivid and attention grabbing than when it is pallid
andbland. Information presented in a highly imaginableway is
more persuasive than simple verbal descriptionsof the same
material.Virtual environments have also piqued psycholo-
gists’interests in the notion ofpresence, or thedegree to which a
user or observer has the impressionof actually“being in another
world”and present inthe virtual environment. For virtual
environments tobe effective, they should realistically create this
alter-nate reality. But think for a moment about how
toobjectively measure whether someone is experiencingan

36. alternative reality. It quickly becomes clear why,despite efforts
to capture the subjective experience ofbeing present in another
world, objective measuresare, at present, lacking (Bailenson,
Blascovich, Beall, &Noveck, 2006).A concern about the use of
virtual environmentsin court is that people who witness them
may be soswept up in the experience and persuaded by the life-
like nature of these scenes that they have difficultyimagining or
visualizing a different point of view.This notion,
termedexperiential inflammatorybias, suggests that in the least,
both sides in a trialshould be able to manipulate and alter any
virtualenvironment introduced into evidence (Bailensonet al.,
2006).Although virtual environment technology is notyet
routinely used in actual trials, that day may arrivesoon. (We
describe one case that incorporated someof these new
technologies in Box 8.4.) Indeed,proponents believe that the
technology is alreadymature enough to warrant its use in
court:“If apicture is worth a thousand words, then
a...virtualreality simulation should be worth at least ten thou-
sand”(Bailenson et al., 2006, p. 265). The day hasalready
arrived for animations, simulations, remoteBox8.4THE CASE
OF U.S. ARMY STAFF SERGEANT TERRENCE DILLON IN
VIRTUAL REALITYTo treat his high cholesterol levels, U.S.
Army Staff Ser-geant Terrence Dillon underwent a surgical
procedure inFebruary 2002, in which doctors implanted a“new
lifestent.”The stent was designed to cleanse blood of cho-
lesterol and to dissolve cholesterol-forming plaque block-ing
the arteries. But for Dillon, the stent worked too well,loosening
large amounts of plaque that clogged his circu-latory system
and causing a stroke. Dillon died in March,2002. Shortly
thereafter, the stent’s manufacturer, New-Life MedTech, was
criminally indicted for manslaughter(Horrigan, 2002).In truth,
none of this actually happened. But thesefacts served as the
basis for a simulated trial, one featureof a legal technology
program dubbed“Courtroom 21Project”by the National Center
for State Courts. Theproject provides technology information to
lawyers andjudges.During the“trial,”the defense argued that

37. NewLifeMedTech was not at fault and that blame lay with
thesurgeon who allegedly placed the stent in the wrongpart of
the artery. To bolster that argument, the defenseoffered the
testimony of a nurse who donned a virtualreality headset and
specialized goggles, giving him athree-dimensional view of the
operating room and allow-ing him to describe the stent’s
placement. The prosecu-tion countered by arguing that because
the nurse’s viewof the surgery was obstructed, he was unable to
seewhere the stent had been implanted. Because
virtualenvironment technology allowed jurors themselves
towatch a reenactment of the surgery on laptops, theycould
decide for themselves what the nurse was able toobserve.
Images were also projected to wide-screen moni-tors in the
courtroom, allowing the judge, lawyers, trial-watchers, and even
observers outside the courtroom toview the virtual operation
and reach their own conclu-sions. Whether NewLife MedTech
was convicted is largelyirrelevant; the noteworthy fact is that
the“trial”intro-duced many people to the courtroom of the
future.Critical Thought QuestionsWhy might evidence presented
via virtual environmenttechnology be more persuasive to
decision makers thanevidence presented verbally or even
visually?
CHAPTER 9
The previous chapter described the componentsof our legal
system that have been in place forcenturies. Although, valuing
precedent as it does,the law is slow to change, the last three
decades havewitnessed various innovations that are important
anduseful. These will be discussed in the present chapter.The
first major area—alternative dispute resolution—has been
applied in both criminal and civil contexts.The second major
area of discussion is communityalternatives to standard
prosecution. Our discussionof this area is framed within the
Sequential InterceptModel, which identifies different points at
whichcertain groups of individuals can be diverted fromstandard
prosecution into an approach that is morerehabilitation oriented.

38. The discussion will includerelevant research findings, which are
very importantin considering the effectiveness of interventions
atthese different stages.ALTERNATIVE DISPUTE
RESOLUTIONIf you watch cable and online news and
entertain-ment, you might get the impression that mostlawsuits
are resolved by a trial by jury. In fact,most cases are resolved
through negotiation or byalternative dispute resolution (ADR),
and relativelyfew cases are settled in trials. In a 2001 study of
courtsin 46 randomly selected counties in 22 states, theNational
Center for State Courts found that thenumber of cases tried had
decreased by 50% in10 years (Post, 2004c).The drop-off of
trials in the federal courts—particularly civil trials—is even
more dramatic. In 1962,11.5% of federal civil cases were
decided in a trial, com-pared with 6.1% in 1982, 1.8% in 2002,
and only 1.2%in 2009 (Qualters, 2010). On the criminal side,
trialsalso decreased, though not as sharply. In 1962, 15.4%of
criminal cases went to trial; in 2002 only 4.7%involved a trial
(Galanter, 2004).These declines are attributable to several
factors,including the perceived cost of litigation—the“trans-
action costs,”in economists’language. Lawyers’feesto prepare
for and try a case, as well as the fees paid toexpert witnesses,
often make a trial economicallyunfeasible. In addition, federal
courts pressure litigantsto settle or to plead guilty. The federal
sentencingguidelines give criminal defendants an incentive
toplead guilty because judges can decrease the length ofa
sentence on the basis of“acceptance of responsibility”(which
normally requires a guilty plea) (Galanter,2004). Finally,
federal trials have decreased becauseit has been some years
since Congress has passedsweeping legislation that creates
liability for certainactions—legislation such as the Americans
withDisabilities Act of 1990 (Qualters, 2010).In civil cases,
federal judges are required toattempt to resolve disputes
through ADR, and inboth state and federal courts, judges can
require liti-gants to try to settle their cases without going to
trial.Increasingly, American courts assume that cases willbe
settled, not tried, to the point where a trial isviewed“as a failure

39. of the system”(Sanborn, 2002,p. 25). Edmund Ludwig, a judge
with over 30 yearsof experience, describes it this way:Litigation
represents a breakdown in communi-cation, which consists in
the civil area of theinability of the parties to work out a
problemfor themselves and in the criminal area, ofineffectively
inculcating society’s rules and theconsequences for violating
them. Trials are themethod we have ultimately used to deal
withthose breakdowns. However, the goal of oursystem is not to
try cases. Rather, it is to achievea fair, just, economical, and
expeditious result bytrial or otherwise (Ludwig, 2002, p.
217).Many cases are settled bynegotiation, withoutthe
assistance of a third party. Negotiation might beformal, as
happens when management and unionrepresentatives negotiate a
labor contract, or informal,as when attorneys go back and forth
in a series ofphone calls to settle a personal injury claim.
Anotherinformal mechanism involves collaborative divorce,
inwhich lawyers and psychologists work with a divorc-ing
couple to finalize all issues without going to court.Typically,
there is a heightened sense of trust, open-ness, and disclosure in
collaborative divorce (Degoldi,2008). We describe one example
in Box 9.1.As in trials, procedural justice considerationsare
important in successful negotiations. People careabout both the
outcome of negotiations and the fair-ness of the process. In a
study in which law studentsrole-played attorneys in a simulated
negotiation abouta contract dispute, participants thought
negotiationswere fair when they believed that they had
beenlistened to and treated with courtesy, and when they
perceived the other party as trustworthy (Hollander-Blumoff &
Tyler, 2008).ArbitrationOne form of ADR, bindingarbitration,
bearsthe closest resemblance to a trial. When the partiesagree to
binding arbitration, they agree to accept thedecision of an
arbitrator. Salary arbitration in majorleague baseball is a good
example of binding arbitra-tion. The contract between the
owners and theplayers’union provides that players’salary
disputesare settled by binding arbitration, and it furtherprovides
that the arbitrator must accept either theowner’s offer or the

40. union’s offer but cannot splitthe difference. The parties have an
incentive to makean offer as close as possible to the
player’s“value”(their estimate of the arbitrator’s valuation of
theplayer’s worth). Although many cases require
bindingarbitration, other cases are resolved by
nonbindingarbitration. If one of the parties is dissatisfied
withthe arbitrator’s decision, that person may ask that thecase
be tried before a judge or jury.Arbitration, whether binding or
nonbinding, usestrial-like procedures. The parties present
evidence andargue the case, and the arbitrator makes a
decision.Though initially promoted as a way to avoid the con-
tentiousness and expense of a trial, in recent yearsarbitration
has been criticized for being overly formaland time consuming
(Stipanowich, 2010). Othermethods for resolving disputes, such
as mediation(which we discuss later), are more
streamlined.Summary Jury TrialThesummary jury trialis an
interesting variationon arbitration. The concept was created by
FederalDistrict Court Judge Thomas Lambros in the early1980s
as a result of his difficulty resolving two per-sonal injury cases
using other forms of ADR. Theparties in these cases refused to
settle, each assumingthat it would get a more favorable verdict
from a jury.Judge Lambros reasoned that chances for
settlementwould increase if the parties had a sense of whata
jury would do. He instituted an abbreviated andexpedited form
of a jury trial that he suspectedwould be especially helpful in
resolving relativelysimple, lower-value cases.A summary jury
trial is much like a conventionaljury trial, though shorter. A
jury is empanelled, and thelawyers tell the jurors what the
witnesses would say ifthey were present. The lawyers argue the
case and tryto answer the jurors’questions about the facts.
Thejudge tells the jury what the law is and tries to
answerjurors’questions about the law. The jurors then delib-
erate and decide the case. In the original conception ofa
summary jury trial, the“verdict”did not bind theparties, it was
merely advisory. In recent years, verdictshave become binding
and enforceable. Regardless ofthese variations, the intent is the

41. same: the processeducates the lawyers and clients on how a
conven-tional jury might view the facts and the law.
Onceeducated, the lawyers and their clients are moreamenable
to settling the case (National Center forState Courts, 2012).
TheAmerican Bar Journalhas reported favorablecomments
from lawyers and judges who had availedthemselves of this
form of ADR (McDonough, 2004).Commenting on the summary
jury trial, federal judgeWilliam Bertelsman said,I believe that
substantial amounts of time can besaved by using summary jury
trial in a few selectcases. Also...the summary jury trial gives
theparties a taste of the courtroom and satisfies
theirpsychological need for a confrontation with eachother. Any
judge or attorney can tell you thatemotional issues play a large
part in some cases.When emotions are high, whether
betweenattorneys or parties, cases may not settle evenwhen a
cost-benefit analysis says they should.A summary jury trial can
provide a therapeuticrelease of this emotion at the expenditure
ofthree days of the court’s time instead of threeweeks (McKay
v. Ashland Oil Inc., 1988, p. 49).MediationAnother form of
ADR,mediationinvolves a neutralperson (the mediator) who
works with the litigantsand their lawyers to achieve a settlement
of thecontroversy. The mediator does not have authority,as an
arbitrator does, to decide the controversy. Rather,the mediator
acts as a facilitator. Mediation ofteninvolvesshuttle diplomacy,
a term associated with formerSecretary of State Henry
Kissinger. Much as Kissingerwould“shuttle”between the two
sides in internationaldiplomacy, the mediator goes back and
forth
betweentheparties,meetingfirstwithoneside,thenwiththeother, in
an attempt to broker an agreement betweenthe two (Hoffman,
2011).One thinks of lawyers as eager to do battle—to slay
their opponents with rhetorical swords.Increasingly though,
disputants prefer procedures inwhich a neutral third party helps
them to craft a reso-lution of their own; in short, people prefer
mediation(Shestowsky, 2004). Why? People arerisk averse;they
work to avoid taking risks. They prefer that con-troversies be

42. settledby themrather than decidedforthem. A mediator can
assist in facilitating a resolution,and people prefer the certainty
of a settlement overthe uncertainty of arbitration or
trial.Mediation also has a role in divorce proceedings.An
alternative to collaborative divorce (in whichboth parties
employ their own lawyers, who agreeto cooperate), a mediated
divorce involves a thirdparty who helps the couple to dissolve
their marriage.Psychologists have assessed whether a mediated
divorceleads to more desirable outcomes than litigation.One
remarkable study assessed parent–child contactand co-parenting
in families whose custody disputeshad been resolved 12 years
earlier by either mediationor litigation (Emery, Laumann-
Billings, Waldron,Sbarra, & Dillon, 2001). Families who
mediatedcustody showed more cooperation and flexibilitythan
families who litigated. In particular, nonresidentialparents who
mediated had more contact with their children and were more
intimately involved in parent-ing, and fathers who mediated
were much moresatisfied with their custody arrangements.
Comparedto litigated divorces, mediation apparently
encouragesparents to comply with divorce agreements,
remainedinvolved in their children’s lives, and renegotiate rela-
tionships in a more adaptive way.Beliefs about Alternative
DisputeResolutionWhat form of ADR do people tend to favor?
Theanswer to this question is important because ADRprocedures
will be accepted and used only if theyare respected and
considered legitimate. A recentstudy investigated the
preferences for different disputeresolution features among
people involved in actual dis-putes. They indicated their
preferences for a particularprocess and set of rules. The most
consistent finding wasthat participants favored options that
offered themcontrol (e.g., a neutral third party helping
disputantsto arrive attheir ownresolutions, and processes
thatallow disputants to controltheir ownpresentation ofevidence)
(Shestowsky & Brett, 2008).Should courts force litigants to try
ADR beforesetting a case for trial? The reports from courts
thatmandate ADR are generally positive. Attorneys likethe

43. process, believing that it is fair and saves clientstime and
money (Boersema, Hanson, & Keilitz,1991). The
counterargument is that litigants have aconstitutional right to
trial by judge or jury. Judgesare paid to enforce that right;
mandating ADR under-mines it. According to Federal Judge G.
Thomas Eisele(1991), mandatory ADR can lead to an
unintendedeffect: some lawyers (he calls
them“piranhas”)filemeritless claims, knowing that their claims
will have“settlement value”in mediation.COMMUNITY
ALTERNATIVES TOSTANDARD PROSECUTIONWe now
move from ADR, which is practiced in bothcivil and criminal
law, to community alternatives tostandard prosecution (criminal
law only). Have youever wondered whether there was a more
effectiveway than conviction and incarceration for our societyto
respond to certain kinds of offenders? Drug abusewas once
considered an indication of poor motivationand weak character;
now it is treated as a disease. Butwhat about the offender who
continues to break thelaw by stealing, possessing substances
that are illegal,and behaving in a way that reflects being high?
Ifsuch an individual were successfully treated fordrug abuse and
monitored to ensure that she didnot continue to behave in illegal
ways, that wouldbe a far better approach than incarceration.
This isa description of the kind of offender who is well-suited
for a drug court—aspecializedkindofproblem-solving court,
developed to rehabilitateand monitor individuals in the
community ratherthan incarcerate. Such problem-solving courts
arediscussed in this section.There has been increasing attention
over the lastdecade to community-based alternatives to convic-
tion and imprisonment for certain individuals. Aswe will
discuss, such community-based alternativeshave developed
because they are more humane, lessexpensive, and make our
society safer (or at least donot increase the risk of crime).
Typically these indivi-duals are members of a certain subgroup
whose expe-rience or mental health disorder might account fora
number of minor offenses committed by membersof this group.
For example, individuals with severemental illness—

44. schizophrenia, bipolar disorder, majordepressive disorder, and
other psychotic disorders—might have a greater likelihood of
being arrested fordomestic disturbances, encounters with police,
andinteractions with other citizens when the symptomsof such
disorders are active. Individuals with seriousdrug problems may
become involved in offenses suchas theft, prostitution, and
public intoxication for rea-sons related directly to the need to
buy drugs and theconsequences of taking them. Military
veterans maybecome involved in offenses such as traffic
violations,drug or weapon possession, or problematic
interactionswith police, fueled in part by posttraumatic
stressdisorder or traumatic brain injury. Each of theseexamples
recognizes that some criminal offendinginvolves acting upon
symptoms that could be con-tained with targeted treatment and
rehabilitation.This is the basic philosophy underlying the devel-
opment of community alternatives to standard crimi-nal arrest,
prosecution, and incarceration. Three majorjustifications have
been offered for the developmentand expansion of such
community alternatives. Thefirst is humanitarian. In the words
of the U.S. SupremeCourt, the Eighth Amendment (one part of
whichstates that“cruel and unusual punishments”may not
children and were more intimately involved in parent-ing, and
fathers who mediated were much moresatisfied with their
custody arrangements. Comparedto litigated divorces, mediation
apparently encouragesparents to comply with divorce
agreements, remainedinvolved in their children’s lives, and
renegotiate rela-tionships in a more adaptive way.Beliefs about
Alternative DisputeResolutionWhat form of ADR do people
tend to favor? Theanswer to this question is important because
ADRprocedures will be accepted and used only if theyare
respected and considered legitimate. A recentstudy investigated
the preferences for different disputeresolution features among
people involved in actual dis-putes. They indicated their
preferences for a particularprocess and set of rules. The most
consistent finding wasthat participants favored options that
offered themcontrol (e.g., a neutral third party helping

45. disputantsto arrive attheir ownresolutions, and processes
thatallow disputants to controltheir ownpresentation ofevidence)
(Shestowsky & Brett, 2008).Should courts force litigants to try
ADR beforesetting a case for trial? The reports from courts
thatmandate ADR are generally positive. Attorneys likethe
process, believing that it is fair and saves clientstime and
money (Boersema, Hanson, & Keilitz,1991). The
counterargument is that litigants have aconstitutional right to
trial by judge or jury. Judgesare paid to enforce that right;
mandating ADR under-mines it. According to Federal Judge G.
Thomas Eisele(1991), mandatory ADR can lead to an
unintendedeffect: some lawyers (he calls
them“piranhas”)filemeritless claims, knowing that their claims
will have“settlement value”in mediation.COMMUNITY
ALTERNATIVES TOSTANDARD PROSECUTIONWe now
move from ADR, which is practiced in bothcivil and criminal
law, to community alternatives tostandard prosecution (criminal
law only). Have youever wondered whether there was a more
effectiveway than conviction and incarceration for our societyto
respond to certain kinds of offenders? Drug abusewas once
considered an indication of poor motivationand weak character;
now it is treated as a disease. Butwhat about the offender who
continues to break thelaw by stealing, possessing substances
that are illegal,and behaving in a way that reflects being high?
Ifsuch an individual were successfully treated fordrug abuse and
monitored to ensure that she didnot continue to behave in illegal
ways, that wouldbe a far better approach than incarceration.
This isa description of the kind of offender who is well-suited
for a drug court—aspecializedkindofproblem-solving court,
developed to rehabilitateand monitor individuals in the
community ratherthan incarcerate. Such problem-solving courts
arediscussed in this section.There has been increasing attention
over the lastdecade to community-based alternatives to convic-
tion and imprisonment for certain individuals. Aswe will
discuss, such community-based alternativeshave developed
because they are more humane, lessexpensive, and make our

46. society safer (or at least donot increase the risk of crime).
Typically these indivi-duals are members of a certain subgroup
whose expe-rience or mental health disorder might account fora
number of minor offenses committed by membersof this group.
For example, individuals with severemental illness—
schizophrenia, bipolar disorder, majordepressive disorder, and
other psychotic disorders—might have a greater likelihood of
being arrested fordomestic disturbances, encounters with police,
andinteractions with other citizens when the symptomsof such
disorders are active. Individuals with seriousdrug problems may
become involved in offenses suchas theft, prostitution, and
public intoxication for rea-sons related directly to the need to
buy drugs and theconsequences of taking them. Military
veterans maybecome involved in offenses such as traffic
violations,drug or weapon possession, or problematic
interactionswith police, fueled in part by posttraumatic
stressdisorder or traumatic brain injury. Each of theseexamples
recognizes that some criminal offendinginvolves acting upon
symptoms that could be con-tained with targeted treatment and
rehabilitation.This is the basic philosophy underlying the devel-
opment of community alternatives to standard crimi-nal arrest,
prosecution, and incarceration. Three majorjustifications have
been offered for the developmentand expansion of such
community alternatives. Thefirst is humanitarian. In the words
of the U.S. SupremeCourt, the Eighth Amendment (one part of
whichstates that“cruel and unusual punishments”may not as
well as decreasing the number of incidents in whichthe
individuals or the police officers are harmed. Forinstance, an
individual with bipolar disorder, off medi-cation and in the
midst of a manic episode, might betaken to the local psychiatric
emergency room ratherthan arrested for disturbing the peace and
battery on anofficer if encountered by CIT-trained police. We
sharea representative story in Box 9.2, provided by a CIT-
trained officer in Florida, describing the difference thatsuch
CIT training can make in correctional facilities aswell as in the
community.What is the evidence that CIT is effective