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 …
Ch. 8
SUMMARY
1.What are the major legal proceedings between arrest and trial
in the criminal justice system?
(1) An initial appearance, at which defendants are informed of
the charges, of their constitutional rights, and of future
proceedings; (2) a preliminary hearing, in which the judge
determines whether there is enough evidence to hold the

15. defendant for processing by the grand jury; (3)action by the
grand jury, which decides whether sufficient evidence exists for
the defendant to be tried; (4) an arraignment, involving a formal
statement of charges and an initial plea by the defendant to
these charges; (5) a process of discovery, requiring that the
prosecutor reveal to the defense certain evidence; and
(6)pretrial motions, which are attempts by both sides to win
favorable ground rules for the subsequent trial.
2.What is bail, and what factors influence the amount of bail
set?
Bail is the provision, by a defendant, of money or other assets
that are forfeited if the defendant fails to appear at trial. In
determining whether to release a defendant prior to trial, the
judge should consider the risk that the defendant will not show
up for his or her trial. Judges also consider the seriousness of
the offense and the defendant’s prior record as well as the
defendant’s race and gender.
3.Why do defendants and prosecutors agree to plea bargain?
Plea bargaining is an excellent example of the dilemma between
truth and conflict resolution as goals of our legal system. The
vast majority of criminal cases end between arrest and trial with
the defendant pleading guilty to some(often reduced) charges.
Plea bargaining benefits both defendants and prosecutors.
Defendants who plead guilty often receive reductions in the
charges or in their sentences; prosecutors secure a “conviction”
without expending their time at trial.
4.What are settlement negotiations, and why are most civil
lawsuits resolved through settlement rather than trial?
Settlement negotiations are private discussions held between the
attorneys representing disputing parties in a civil lawsuit. The

16. objective of the negotiations is to resolve the dispute in a
manner agreeable to both sides. Settlement negotiations are
often preferable to trials because (1) a negotiated compromise is
more appealing to most litigants than the uncertainty of a jury
trial, and (2) judges have large caseloads (or dockets) and
therefore prefer that participants in civil disputes resolve their
differences themselves without using the considerable resources
necesary to a trial.
5.What is the purpose of a trial?
Every trial presents two contrasting views of the truth.
Although at first glance, the purpose of a trial seems to be to
determine truth, conflict resolution may be an equally valid
purpose. This debate is exemplified by three contrasting images
of a trial: (1) as a search for the truth, (2) as a test of
credibility, and(3) as a conflict-resolving ritual.
6.What are the steps involved in a trial?
Pretrial procedures include discovery, or the process of
obtaining information about the case held by the other side.
Once the jury is selected (a process called voir dire), the
following sequence of step sun folds in the trial itself .
Opening statements by attorneys for the two sides (prosecution
or plaintiff goes first)b. Direct examination, cross-examination,
and redirect and recross of witnesses, with prosecution
witnesses first, then defense witnessesc. Presentation of
rebuttal witnesses and evidenced. Closing statements, or
summations, by the two sides, usually in the order of
prosecution, then defense, then prosecution againe. Judge’s
instructions to the jury (in some juris-dictions, these come
before the closing statements)f. Jury deliberations and
announcement of averdictg. If the verdict is guilty,
determination of the punishment
KEY TERMS

17. anchoring and adjustment bias
arraignment
change of venue
charge bargaining
closing argument
discovery
exculpatory
experiential inflammatory bias
extra legal factors
focal concerns perspective
framing effects
grand jury
heuristics
impeachment
indictments
initial appearance
legal factors
matching heuristic
motion in limine
opening statements
overconfidence bias
perjury
plea bargains
preliminary hearing preponderance of evidence
presence
preventive detention
probative value
rebuttal evidence
recross
redirect questioning
reservation
price self-serving bias
sentence bargaining
settlement negotiation
vividness effect

18. Ch. 9
SUMMARY
1.What is alternative dispute resolution (ADR)?What are some
types of ADR?
Alternative dispute resolution (ADR) is an umbrella term for
alternatives to the court and jury as a means of resolving legal
disputes. The most common forms are arbitration, in which a
third party decides the controversy after hearing from both
sides, and mediation, in which a third party tries to facilitate
agreement between the disputants. The summary jury trial is
another ADR mechanism.
2.What is the Sequential Intercept Model?
The Sequential Intercept Model is a theoretical identification of
the most relevant points of interception from the standard
process of arrest, prosecution, conviction, and incarceration of
criminal offenders.
3.What are the major stages (or intercepts) for community-based
alternatives to standard prosecution?
The intercepts that are relevant to community-based
alternatives, diverting offenders from jail or prison into a
rehabilitative community disposition, are (1) specialized law
enforcement and emergency services responding; (2) post-arrest
initial detention/hearing; and(3) jail/prison, courts, forensic
evaluations, and commitments.
4.What are the similarities and differences between community
court and other kinds of problem-solving courts?
The underlying philosophy of all problem-solving courts
reflects the view that identifying and rehabilitating a subset of
criminal offenders can be accomplished less expensively, less
restrictively, and more safely in the more rehabilitation-oriented
problem-solving court than with the traditional criminal
process. But most problem-solving courts accept a specific
subgroup of offenders, based on their symptoms(e.g., mental
health court, drug court) or experience (e.g., veterans’ court),
with the assumption that those in such groups have a specific

19. constellation of rehabilitation needs which, if addressed, would
make them less likely to reoffend. By contrast, community court
is more heterogeneous, and may include a variety of groups of
offender in need of rehabilitation for particular reasons that
relate strongly to their risk for future offending.
KEY TERMS
Arbitration
criminalization hypothesis
Crisis Intervention Team
Deinstitutionalization
Mediation
meta-analysis
negotiation
problem-solving court
risk averse
specialized police responding
summary jury trial
therapeutic jurisprudence