How Many Guilty People Are Guilty?

LawSchoolBlogger asked, in a comment:

I wonder what percent of people who say they're guilty really aren't...What's your guess?


You know, it happens. False confessions exist, as do false guilty pleas. Some of the people who have been exonerated by DNA evidence actually made confessions when they were arrested, for a variety of reasons, perhaps it was coerced or they were naive or it was a My Cousin Vinny -style "I killed the clerk?" confession.

As far as guilty pleas, I wouldn't say that it happens a lot, but I know that it happens. I see it particularly where defendants are offered time served if they plead guilty or, in the alternative, they will be held on bail if they want to wait for a trial. And that can takes months or longer.

I also see it in the context of illegal immigrants - pleading guilty and walking out of the courtroom immediately means escaping the long arm of ICE, waiting a few months in the jail might mean having your status questioned. In the end, a criminal records makes the non-citizen more deportable, but someone who is here is pretty much deportable anyway, so why make it easier by waiting for the ICE agent to show up?

And it's not always about jail time. I had a case just last week, where my client told me that he "didn't do it," and came to court every month for months waiting for his trial. And I knew, no matter how it shook out, that we had a good shot at trial. And, worse case scenario, he was probably facing probation and some fines.

Recently, though, my client lost his job. Last week, he got hired for a new job. He told them that he could start the day after we had court. So, he asked me, "Can you just work out the best possible plea for me today? I won't be able to keep taking off work at my new job." I explained to him that he had consistently told me he was innocent, and that I thought we had a good shot at winning at trial, and that to plead guilty he'd have to "admit his guilt" to the judge.

And he told me, "I just can't afford to lose this job. I just need to get this over with." It was his fourth or fifth day spent in court.

I went to the prosecutor to work out a plea. And I said to him, "Look, I don't think my guy did it. But he wants to get this over with." I laid out the evidence I thought the prosecutor would have at trial, I laid out the evidence I would have, some of which I had been saving for trial. I think the prosecutor recognized that this was working out well, and offered my client just a fine, no time on probation.

So, he pleded guilty, "admitted" his guilt.

It's kind of a weird thing, because of course I'm never allowed to lie to the court... but this is kind of a lie, right? I stood next to my client and let him lie and say he did it, after he told me twenty times he didn't do (and had kind of proven it to me).

I guess the cynic would say, "For all you know, he could have been lying when he said he didn't do it, and finally telling the truth when he was pleading guilty." But, really, then why doesn't the reverse work? If my client had told me twenty times he did it, and then I led him through testimony in which he finally claimed that he didn't do it, I would be suborning perjury.

But guilty pleas are what makes our judicial system efficient. So, I guess a little lying is allowed for that purpose only.

The other thing is, people who "did it," in that they did the actions described by the police or other witness, but who probably aren't legally guilty because they didn't have the requisite intent or maybe wouldn't be found guilty at trial because of other facts of the case.

For example, if Senator Larry Craig said "I did what they said I did - I tapped my toe and put my hand under the stall... but I only did it because I was out of toilet paper." Sure, if this was a video camera in the bathroom, he did what they say he did, but would he have a shot at that defense at trial? I think so.

To answer your question, it's hard to put a number on it. Some clients don't tell me their whole story, some clients don't tell me the truth. If I had to guess, maybe I would say somewhere around 10-15% of the people who are pleading guilty are not, in fact guilty.

But that's just a guess. Anyone else want to take a stab at that?

17 comments:

  1. Yeah, these situations are always a conundrum for me - and one that keeps me up at night at that.

    Also, with Re: to ICE, I dont' know about where you are but in my neck of the woods, they get my non citizen clients within an insane amount of time - a day or two and there's a hold on them.

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  2. Wow, I'm really moved by your story about the client who pled guilty so he could start his new job. It seems so strange, but the truth is I think that many of us could see ourselves doing the exact same thing. A person has to make a living. That's the bottom line sometimes. Thanks for a thought-provoking post.

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  3. Just a guess, but I'd say 50% of my clients are straight up guilty as charged. Another 40% are guilty of something, but not quite what the state/victim has alleged. Probably 10%ish are there because of mistake/ vindictive prosecution.

    I plead people who aren't guilty a lot. Of course, if I had a felony and was promised a probated misdemeanor, I'd probably cop out too.

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  4. Good post. I struggle with this question as well, but as a former boss liked to tell me, "Everyone has a right to plead guilty."

    I'll encourage my clients not to plead guilty if it's a winnable case, but.. at the end of the day, it's their decision, not mine.

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  5. I would make the following estimate:

    95-98 percent of my clients who plead guilty actually meet all the elements of the charge to which they plead. Some have tenable legal defenses, such as a fourth amendment violation which is withheld in exchange for the plea.

    The remaining very small percentage plead guilty to avoid the risk of loss at trial; sometimes a very small chance of losing, but the possibility of devastating consequences.

    The large majority who are "guilty" when they plead, are usually also guilty of the charges that are dropped in exchange for the plea, and oftentimes guilty of other uncharged offenses that could be charged out of the same incident.

    The other side of the coin, I suppose, is the small percentage of cases where the client is "guilty," in that he meets all the factual/intent elements of the charged crime, but his case is successfully dispatched by way of a suppression motion of other so-called "technicality."

    The hard part is convincing clients that their definition of "justice" is not entirely accurate.

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  6. Wow. I inspired an awesome post.

    Gosh, did you let your client lie...?
    Tough question. Next time I see my Ethics prof I'll see what he has to say.

    Tough situation all around, I guess.

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  7. Has the nolo contendere plea gone away, or do you have to be something like an ex Vice President to get a judge to agree to it?

    (If you don't know what I mean, google Spiro Agnew.)

    markm

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  8. Hey,

    In the introduction of an awesome book on wrongful convictions put out by the UCBerkeley grad program in journalism and edited by Dave Eggers, "Surviving Justice," they write about a poll conducted among prosecutors all across the country. by their own very conservative estimates, they figured that something like 1% of all convicted people were literally, actually, factually innocent (like mistaken-identity, not even there, didn't know that person type innocent). Based on this conservative estimate, of course, there are 20,000 wrongly imprisoned. Whoa. Excellent book, by the way.

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  9. I just read David Feige´s book Indefensible. He takes a whole chapter (nine) with a hypothetical situation telling how after being worn down by the system, pleading guilty to a reduced offense can become a thoroughly rational choice for someone who initially intended to stand up for their innocence.

    As for the lawyer´s participation in the morality play, in my understanding it comes down to the difference between actual knowledge (which you do not have because you were not there when the incident went down) and any settled belief that you may have in your client´s innocence. So it is not quite correct to say that you are ´letting your client lie´ as lawschoolblogger suggests.

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  10. I would have to agree with brainmarket:

    About 80 percent of my clients meet all the elements of the charge

    10 percent make State v. Alford pleas (where they believe that a reasonable jury would find them guilty if presented with the evidence in there case)

    But i find that up to 10 percent plea guilty in exchange lenient sentences, e.g. probation and non adjudication.

    The hardest part for me is helping someone plea who I know will not be able to meet the terms of their probation. i.e. crackheads and the homeless.

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  11. I completely understand where you're coming from. As well as having to convince yourself that you don't know what your client really did. I've had that talk with myself many times.

    I also think one of the strongest motivators is the fear of trial. Clients I've had who are strong with a great defense will hold up until the day of calendar call. And as soon as they realize they're up, I suddenly have a line of clients who don't want to risk it. And I can't say I blame them. People who don't want to lose their job or their kids even though they believe they did nothing wrong. It's because they know that being right doesn't mean you'll be treated right.

    It's a sad thing, but you do what you can for your client.

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  12. I was talking to my cop friend the other night. One of the reasons they will throw so many charges at a guy is because they know that there's going to be a plea so they game the system and pile on whatever they can come up with. The sad truth is that there really isn't much due process in this country. Most cases are pleaded out because after they're done piling a mountain of charges on you there are very few who can risk the time, expense, and possibility of losing.

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  13. My percentage would be much higher, close to 95-98% of my clients did whay they are accued of doing, or the lesser-included offense to which they eventually plead. We freely use the "no contest" plea and the Alford plea (which allows the Defendant to maintain his innocence and permit a conviction to avoid a potentially harsher penalty after trial).

    Of course, you must remember that our clients will also LIE to us.

    As long as you've thoroughly explained the options to the client, s/he must make the decision with which s/he lives, and you cannot beat yourself up about that.

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  14. Couldn't your client have taken what about an Alford plea deal? Or doesn't your state allow that?

    Gretchen

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  15. It's not lying if you prostrate yourself before the high priests of law; it is only lying if you attempt to resist their will.

    The system demands admitting guilt. That's why it has evolved into the efficient submission-extraction process it is today.

    What really matters is not punishing crime; what matters is repeating the ritual of having individuals submit their autonomous will to the authority of the state by admitting guilt. Honesty and truth have nothing to do with it.

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  16. I have a friend who was recently in court and plead guilty, even though he was innocent.The situation was awful.this person was arrested(twice) for a misdemeanor that was over 14 years old.The charge was not blowing properly, other bogus charges were failure to appear in court (after being jailed
    for NO reason)and driving under suspension.The driving under suspension NEVER made it in front of a judge because it was crap.Failure to appear-well let's just say they didn't want to hear the truth -why after 4 years in court on a bogus charge and then thrown in jail for "contempt"by the judge who was a friend of accused family.Bogus bail with restrictions such as not able to drive a lawn mower.DEmeaning behavior by crown attorneys who lied to the court and were twisting the situation to make the facts look different that what they are.
    Well the crown was threatening 3 months in jail-to an old man who was sick.Several times told by own lawyer if YOU DO NOT PLEAD GUILTY
    you will go to jail for three months.The judge always asks if you have been threatened or is anyone threatening you?My God what are you supposed to say, when the threat is don't even fight this,it's all planed out.If you fight you will go to jail.I feel that these people who did this are sick and have no empathy and are guilty of much worse than they accuse others.You know that something is wrong when other member of the public have shocked looks on their faces,by seeing this shit going on in the courtroom.

    Especially when much worse goes unpunished!

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  17. I wonder how many people that are found not guilty are actually guilty,but are found not my reasonable doubt.What is reasonable or not is different to many people ,that's why I think the justice system in this country is a joke.The rights of the accused are greater then the victims.They say its better to let some guilty people go then to convict 1 innocent ,I totally disagree because those you let go are going to comment crimes on god now's how many innocent people

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