Developing a model of guilty plea decision-making: Fuzzy-trace theory, gist, and categorical boundaries.

OBJECTIVES: To date, most research on plea bargaining has used some form of the shadow of the trial (SOT) model to frame defendant decisions. In this research, we proposed and tested a new conceptual model of plea decision-making, based on fuzzy-trace theory (FTT), for the context in which a nondetained, guilty defendant chooses between a guilty plea or trial, where both the plea and potential trial sentence entail incarceration. HYPOTHESES: We predicted that plea decisions would be affected by (a) meaningful, categorical changes in conviction probability (e.g., low to moderate, moderate to high), as opposed to more granular changes within categories and (b) the presence and magnitude of categorical distinctions between plea offer and potential trial sentence rather than fine-grained differences between individual offers. METHOD: We conducted three vignette-based experiments (Study 1: N = 1,701, Study 2: N = 1,098, Study 3: N = 1,232), using Mechanical Turk participants. In Studies 1 and 2, we manipulated potential trial sentence and conviction probability, asking participants to indicate either the maximum plea sentence they would accept (Study 1) or whether they would plead guilty to a specific offer (Study 2). In Study 3, we manipulated plea discount and potential trial sentence and measured plea acceptance. RESULTS: Maximum acceptable plea sentences were similar within and different between "groupings" of meaningfully similar conviction probabilities (Study 1). Plea rates were similar within and different between groupings that comprised plea offers of similarly meaningful distance from the potential trial sentence (Study 3). The results also provide insight into the plea rates that might be expected under different combinations of the independent variables (Studies 2 and 3). CONCLUSIONS: These results support a new conceptual model of plea decision-making that may be better suited to explaining case-level differences in plea outcomes than the SOT model and suggest that future research extending this model to a wider range of contexts would be fruitful. (PsycInfo Database Record (c) 2023 APA, all rights reserved).

The paradox of conviction probability: Mock defendants want better deals as risk of conviction increases.

Objective: We examined how probability of conviction affects the maximum plea sentence mock defendants will accept. Hypothesis: Relying on Prospect Theory (Kahneman & Tversky, 1979), we hypothesized that, relative to the expected value of trial, participants would need increasingly better sentences as conviction probability increased and would settle for sentences worse than the expected value of trial when probability was very low. Method: We manipulated conviction probability and potential trial sentence in a series of three between-subjects experiments, with Amazon Mechanical Turk participants assigned to the role of guilty defendants. Participants were majority White (75-82%) and non-Hispanic (92-94%); approximately half (45-51%) identified as female. Study 1 (N = 681) explored the effects of conviction probability (.05, .15, .50, .85, .90) and potential trial sentence (5, 20 years) on the maximum sentence accepted in exchange for a plea. Study 2 (N = 343; X¯age = 37.5) clarified results of Study 1 for the upper range of probabilities for two potential trial sentences (5, 10 years). Study 3 (N = 1,035; X¯age = 37.6) replicated the effects of probability (.05, .10, .15, .50, .85, .90) and potential trial sentence (5, 10 years). Results: Across all three studies, participants wanted increasingly better deals (relative to the expected value of trial) as conviction probability increased. For example, in Study 3, when probability of conviction was 0.90, plea sentences were, on average, 58% better than the expected value of trial; in contrast, when the probability was 0.05, sentences that were nearly 4 times the expected value of trial were acceptable. Conclusions: The most commonly used model of plea decision-making, Shadow of the Trial (SOT) (Mnookin & Kornhauser, 1979), assumes a direct and constant linear relationship between conviction probability and plea sentence. In contrast, our data suggest that the way conviction probability affects mock defendants' appraisals of plea offers may change across the probability spectrum. These results can facilitate development of a more comprehensive model of plea decision-making. (PsycInfo Database Record (c) 2021 APA, all rights reserved).

COVID-19 exacerbates existing system factors that disadvantage defendants: Findings from a national survey of defense attorneys.

OBJECTIVE: COVID-19 has impacted many facets of daily life and the legal system is no exception. Legal scholars have hypothesized that the effects of the pandemic may contribute to more coercive plea bargains (Cannon, 2020; Johnson, 2020). In this study, we explored defense attorneys' perceptions of whether and how the plea process has changed during the COVID-19 pandemic. HYPOTHESES: This study was exploratory, and we made no a priori hypotheses. METHOD: We surveyed 93 practicing United States defense attorneys about their perceptions of whether and how the pandemic has affected court procedures, plea-bargaining and prosecutorial behavior, and defendant decision-making. We conducted semistructured follow-up interviews with 13 defense attorneys to help contextualize the survey responses. RESULTS: The majority of defense attorneys (81%, n = 76) reported that the plea process had changed during the COVID-19 pandemic, and that they experienced difficulty contacting and communicating with their clients, especially those who were detained. Two thirds of defense attorneys (n = 42) who said the plea process had changed thought that prosecutors were offering more lenient deals. One third of defense attorneys with detained clients (n = 23) reported having had clients plead guilty due to COVID-19 related conditions who might not have under normal circumstances. CONCLUSIONS: The majority of defense attorneys reported that the COVID-19 pandemic has impacted their ability to access and advise clients, and they believed that leverage in plea negotiations had shifted further to individual prosecutors. At the same time, the attorneys reported that prosecutors were offering more lenient deals, painting a complex picture of the plea negotiation process during the pandemic. (PsycInfo Database Record (c) 2021 APA, all rights reserved).

State of the States: A survey of statutory law, regulations and court rules pertaining to guilty pleas across the United States.

A psycholegal research agenda on guilty pleas is in its nascent stage. Multijurisdictional surveys of related law and policy may advance this research agenda by focusing investigators on the specifics of existing policies and motivating cross-jurisdictional comparisons of diverse policies. We thus conducted a systematic, national survey of statutes, regulations and court rules across the United States pertaining to nine aspects of the guilty plea process, including sentencing differentials, collateral consequences and waiver of rights, which have been identified in existing legal and psycholegal research and commentary. Following a discussion of these issues, including legal concerns and existing research findings, we present the results of our systematic survey. We supplement this review with a non-systematic sampling of appellate case law. Broadly, there was notable diversity in whether and how jurisdictions approached these issues. We discuss general and specific implications of our findings for future research, emphasizing the importance of data on actual policies and procedures to the design of studies that may contribute to evidence-based criminal justice policy.

Guilty pleas of youths and adults: Differences in legal knowledge and decision making.

Few studies have examined differences in the guilty plea decisions of youth and adults. In interviews with 64 youth (X = 15.9, SD = 1.2) and 56 adults (X = 38.5, SD = 11.5) who pleaded guilty to felonies in New York City, we found important differences between the youths and adults in their understanding of the plea process, the factors they considered when making decisions, and their rationales for their decisions. Youth were less likely to recognize that a guilty plea resulted in a criminal record and to understand the trial process, and they reported having considered fewer potential outcomes in their decision making than adults. Like adults, youth overwhelmingly reported pleading guilty for reduced charges or penalties, but were substantially less likely than adults to understand the nature of the rights they were waiving. Our findings raise the question of whether the assumption of competence for youth is reasonable, and whether steps to assess youth understanding and decisional competence should be taken before youth are allowed to enter into plea agreements. (PsycINFO Database Record (c) 2019 APA, all rights reserved).

Feedback processing in adolescence: an event-related potential study of age and gender differences.

Adolescence has frequently been characterized as a period of increased risk taking, which may be largely driven by maturational changes in neural areas that process incentives. To investigate age- and gender-related differences in reward processing, we recorded event-related potentials (ERPs) from 80 participants in a gambling game, in which monetary wins and losses were either large or small. We measured two ERP components: the feedback-related negativity (FRN) and the feedback P3 (fP3). The FRN was sensitive to the size of a win in both adult (aged 23-35 years) and adolescent (aged 13-17 years) males, but not in females. Small wins appeared to be less rewarding for males than for females, which may in part explain more approach-driven behavior in males in general. Furthermore, adolescent boys showed both delayed FRNs to high losses and less differentiation in FRN amplitude between wins and losses in comparison to girls. The fP3, which is thought to index the salience of the feedback at a more conscious level than the FRN, was also larger in boys than in girls. Taken together, these results imply that higher levels of risk taking that are commonly reported in adolescent males may be driven both by hypersensitivity to high rewards and insensitivity to punishment or losses.

Utility of the Standardized Assessment of Concussion (SAC) to Detect Insufficient Effort in Independent Medical Examinations and Civil Litigation Cases.

OBJECTIVE: The Standardized Assessment of Concussion (SAC) is a standardized mental status screening instrument initially developed for assessment and tracking of concussion symptoms in athletes. The purpose of the current study was to validate the utility of the SAC as an embedded screening measure for insufficient effort in independent medical examinations (IME) and personal injury cases. METHOD: A known-groups design was used to examine the SAC's utility for the detection of insufficient effort in 75 de-identified private IME and civil litigation evaluations. Initial classifications of insufficient effort were made independently of SAC scores, on the basis of having two or more scores falling below established cut-offs on previously validated neuropsychological measures. RESULTS: Results suggest that the total score on the SAC significantly distinguishes effortful respondents from those exhibiting insufficient effort. Empirically derived cut-off scores yielded adequate sensitivity (.62-.95) and negative predictive power (.93-.97). CONCLUSIONS: While optimal cut-off scores depend upon intended use, our data suggest that the SAC is useful as a potential screener for insufficient effort, after which one can employ additional measures to rule out false-positives. Further research is required before cut-off scores can be recommended for clinical use.

ERP correlates of malingered executive dysfunction.

Assessment of malingering has become an integral part of many neuropsychological evaluations, particularly in forensic settings. However, traditional malingering measures are known to be vulnerable to both manipulation and coaching. Consequently, recent research has attempted to identify physiological indices of cognitive functioning that are less susceptible to overt manipulation. While prior studies have explored the validity of physiological assessment of memory deficits, this study evaluates the effectiveness of a physiological measure of executive functioning. This study used EEG recording in conjunction with a three-stimulus oddball design to compare neural responses in simulated malingerers feigning cognitive deficits associated with traumatic brain injury (TBI) and controls. Specifically, the study explored the efficacy of an event-related potential (ERP) known as P3a, which is believed to be an index of frontal lobe executive processes, specifically the attentional orienting response. The results of this study demonstrated that simulated malingerers did not produce a P3a response that was significantly different from control participants. Furthermore, the P3a in simulated malingerers did not demonstrate any of the properties reported in prior studies with TBI patients. Not only were malingerers unable to produce a significant change in their basic orienting response, but the very process of attempting to employ additional strategies to appear impaired produced other physiological markers of deception. Therefore, the P3a component appeared to be unaffected by an individual's motivation or overt performance, which suggests that it may have potential for development as a physiological measure for differentiating between malingerers and those with genuine TBI.

The feedback-related negativity (FRN) in adolescents.

This study examined age-related differences in the ERP correlates of external feedback processing (i.e., the feedback-related negativity [FRN]) in adolescent and young adult males, using a simple gambling task involving unpredictable monetary losses and gains of low and high magnitude. The FRN was larger after losses than gains, and was modulated by the magnitude of gains, but not the magnitude of losses, for all participants regardless of age. FRN amplitude was larger in adolescents than adults and also discriminated relatively less strongly between gains and losses in adolescents. In addition, the morphology of the waveform after high losses suggests that feedback in this condition may have been processed less efficiently by adolescents. Our results suggest that, although the FRN in adults and adolescents share some common characteristics, the neural processes that generate the FRN are still developing in midadolescence. These findings are discussed in the context of adolescent risk taking.