Epistemology of Plea Bargaining (Miller)

What are the four epistemic safeguards of our trial system to protect the accused against a presumption of guilt, that Miller lists? How many of these does Miller say are present with plea bargaining? Explain.

1. The defense can rebut prosecution evidence and arguments with evidence and arguments of their own.

2. Although the prosecution aims at conviction and the defense aims at acquittal, evidence is presented to an impartial judge, who presides over the proceedings.

3. A complete public record is kept of the proceedings, allowing for future review or appeal.

4. The defendant is presumed innocent until proven guilty, with a high standard of proof (beyond a reasonable doubt)

None of them are present with plea bargaining

What worrisome social dynamic between defense attorneys and prosecutors is created by the predominance of plea bargaining? Why does Miller find it worrisome? Explain.

causes a cozy social dynamic in which they are on the same team, with the shared goal of resolving a high number of cases, rather than adversaries on different teams. This can, and should, make defendants distrust their defense lawyers. What makes life easier for the defense attorney might not be in the interests of the defendant.

Miller concludes that in plea bargaining the risk of a “false positive” – an innocent defendant being convicted of a crime – is much higher than it is for a jury trial.

What are the two pieces of empirical evidence Miller offers in favor of the claim that many innocent people plead guilty?

1. Simulations of plea bargaining have shown how threatened punishments can affect decision-making.

2. The National Registry of Exonerations lists people exonerated of serious crimes for which they were convicted – by DNA evidence, or the discovery of police corruption – a great many of whom pleaded guilty as part of a plea bargain. (People who confess are also frequently innocent. Again, aggressive and dishonest interrogation practices by police by a big role here.)

What three remedies does Miller recommend for the problems associated with excessive reliance on plea bargaining? Does he think it should be banned?

1. Invest money in our CJS to provide more courtrooms, judges, and public defenders.

2. Decriminalize many things, especially drug possession.

3. Require much greater oversight of plea deals by judges.

Miller does not argue for a ban on plea bargaining, and he thinks it has a role in the CJS.