60 Our trial system like all trial systems is imperfect in its quest for truth

60 our trial system like all trial systems is

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60 Our trial system, like all trial systems, is imperfect in its quest for truth. Juries assess evidence and render judgments. Evidence is rarely in- controvertible; is compounded by human error in assessing evidence. As such, jury verdicts are difficult to predict. The innocent defendant faces pressures to enter a plea bargain by considering the likelihood of acquittal or conviction. He, like the guilty defendant, weighs the risk of being convicted at trial against the certainty of conviction through plea bargaining; however, the innocent defendant may assign a higher value to the risk of being convicted at trial, which makes pleading more attractive. 61 Generally, sentence reduction is the central enticement to a defendant entering into a plea bargain. The guilty defendant knows that he is guilty (generally), and therefore should view the offer for a plea as producing a gain; his sentence will be reduced and the crime he is convicted of may be lowered so that his permanent record does not reflect the actual crime he committed. 62 On the other hand, an innocent defendant may view a plea bargain as the lesser of two losses. Although one might expect a defendant to go to trial in order to avoid all losses, this conclusion does not consider the psychology of an innocent defendant. The plea offers the same conces- sions to the innocent as the guilty, but the innocent defendant regards these concessions as having a higher value because of a different evalua- tion of the risk. Scholars have posited that the innocent defendant is inherently more risk averse than the criminal because a criminal was willing to risk breaking the law in the first place. 63 Criminals violate the law to get 60. See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970). 61. For a discussion of aversion in the face of gain, see Richard Birke, Reconciling Loss Aversion and Guilty Pleas, 1999 UTAH L. REV. 205, 216-17; see also Stephen J. Schulhofer, Crimi- nal Justice Discretion as a Regulatory System, 17 J. LEGAL STUD. 43, 73 (1988). 62. See Palmer, supra note 34, at 515; ROBERT A. CARP & RONALD STIDHAM, JUDICIAL PROCESS IN AMERICA 174 (3d ed. 1996). 63. Not all defendants even consider risk in pleading, particularly innocent defendants who may be concerned about some externality. Eugene Padgett, who was already serving a sentence for
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202 B.Y.U. JOURNAL OF PUBLIC LAW [Volume XVI gains with the understanding that they risk being caught. Criminals also flee crime scenes, resist arrest, and attempt escapes to avoid punishment at the risk of being caught and having their punishments increased. An innocent defendant, however, may mistrust the entire system because of his current predicament, being charged for a crime he did not commit. In such circumstances, the influence of the overzealous prosecutor, and possibly his own attorney, may convince an innocent defendant of his imminent conviction by the jury. Therefore, the innocent defendant may perceive the expected value of a punishment by trial to be higher than a plea bargain. Accordingly, one would expect the innocent defendant to
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