Amicus Curiae Brief — Munson P. Hunter, III, Petitioner v. United States

No. 24-1063

__________________________________________________________________

IN THE

Supreme Court of the United States

___________________________________________

MUNSON P. HUNTER III,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

___________________________________________

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________________________________________________

BRIEF OF THE PLEA BARGAINING

INSTITUTE AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

__________________________________________________________________

LUCIAN E. DERVAN

Counsel of Record

Belmont University

College of Law

1900 Belmont Blvd

Nashville, TN 37212

(615) 460-8271

lucian.dervan@belmont.edu

Counsel for Amicus Curiae

December 9, 2025

______________________________________________________________

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICUS CURIAE................... 1

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT ............................................................... 5

I.

Plea bargaining is a relatively modern

American creation, the inner workings and

psychological aspects of which are better

understood today ......................................... 5

II.

Research demonstrates the existence of the

innocent defendant’s dilemma, and that plea

bargaining is not inherently reliable ......... 11

III.

Research raises significant questions

regarding defendants’ knowledge and

understanding of plea bargaining and their

plea agreements.......................................... 19

CONCLUSION ......................................................... 22

ii

TABLE OF AUTHORITIES

Cases

Bordenkircher v. Hayes,

434 U.S. 357 (1978) ..................................... 8, 9

Boykin v. Alabama,

395 U.S. 238 (1969) ....................................... 21

Brady v. United States,

397 U.S. 742 (1970) ....................... 2, 3, 8, 9, 22

Bram v. United States,

168 U.S. 532 (1897) ......................................... 6

Hill v. Lockhart,

474 U.S. 52 (1985) ..................................... 9, 10

Lafler v. Cooper,

566 U.S. 156 (2012) ............................... 1, 5, 22

Lee v. United States,

582 U.S. 357 (2017) ................................... 9, 10

Menna v. New York,

423 U. S. 61 (1975) ............................ 2, 3, 9, 10

Missouri v. Frye,

566 U.S. 134 (2012) ......................................... 5

Rex v. Warickshall,

168 Eng. Rep. 234 (1783) ................................ 6

iii

TABLE OF AUTHORITIES

(continued)

Wright v. Rindskopf,

43 Wis. 344 (1877) ........................................... 6

Other Materials

Albert W. Alschuler,

Plea Bargaining and Its History,

79 Colum. L. Rev. 1 (1979)............................... 6

American Bar Association,

Plea Bargain Task Force Report

(Feb. 22, 2023) .......................................... 2, 3, 4

American Bar Association,

Project on Standards for Criminal Justice,

Standards Relating to Pleas of Guilty 2

(1968) ................................................................ 8

American Bar Association,

Resolution 502 (2023)................................... 3, 4

iv

TABLE OF AUTHORITIES

(continued)

American Bar Association,

The Cost of Plea Bargains: Reflections and

Recommendations from the ABA Plea Bargain

Task Force (Lucian E. Dervan, Russell D.

Covey, & Thea Johnson eds. 2024) ................. 4

Dan Canon,

Pleading Out: How Plea Bargaining Creates a

Permanent Criminal Class

(Basic Books 2022) ....................................... 6, 7

Lucian E. Dervan,

Bargained Justice: Plea Bargaining’s

Innocence Problem and the Brady SafetyValve, 2012 Utah L. Rev. 51 (2012) ......... 5, 6, 7

Lucian E. Dervan,

Bargained Justice: The History, Psychology,

and Future of Plea Bargaining, 31 Fed. Sent’g

Rep. 239 (2019) ................................................. 5

Lucian E. Dervan,

Class v. United States: Bargained Justice and

a System of Efficiencies, CATO Supreme Court

Review 2017–2018 (2018) .................. 12, 16, 17

v

TABLE OF AUTHORITIES

(continued)

Lucian E. Dervan & Vanessa A. Edkins,

The Innocent Defendant’s Dilemma:

An Innovative Empirical Study of Plea

Bargaining’s Innocence Problem, 103 J. Crim.

L. & Criminology 1 (2013).................. 11, 12, 14

Lucian E. Dervan, Vanessa Edkins, & Thea Johnson,

Victims of Coercive Plea Bargaining, 72 Am.

U. L. Rev. 1919 (2023).................................... 13

Vanessa A. Edkins & Lucian E. Dervan,

Freedom Now or a Future Later:

Pitting the Lasting Implications of Collateral

Consequences Against Pretrial Detention in

Decisions to Plead Guilty, 24 Psychol. Pub.

Pol’y & L. 204 (2018) ...................................... 16

Federal Judicial Center,

Benchbook for U.S. District Court Judges,

6th Ed. (2013) ............................................ 19, 20

George Fisher,

Plea Bargaining’s Triumph: A History of Plea

Bargaining in America (Stanford Univ. Press

2003) ................................................................. 6

vi

TABLE OF AUTHORITIES

(continued)

Rebecca K. Helm, Valerie F. Reyna, Allison A. Franz,

Rachel Z. Novick, Sarah Dincin & Amanda E. Cort,

Limitations on the Ability to Negotiate Justice:

Attorney Perspectives on Guilt, Innocence, and

Legal Advice in the Current Plea System, 24

Psychol., Crime & L. 915, 922 (2018) ..... 15, 16

Kelsey S. Henderson & Lora M. Levett,

Investigating Predictors of True and False

Guilty Pleas, 42 Law & Hum. Behav. 427

(2018) .................................................. 12, 14, 15

Brian D. Johnson,

Plea-Trial Differences in Federal Punishment:

Research and Policy Implications, 31 Fed.

Sent’g Rep. 256 (2019) ................................... 14

Thea Johnson,

Fictional Pleas, 94 Indiana L.J. 855

(2019) ............................................................. 18

Emily Leslie & Nolan G. Pope,

The Unintended Impact of Pretrial Detention

on Case Outcomes: Evidence from New York

City Arraignments, 60 J.L. & Econ. 529

(2017) .............................................................. 17

vii

TABLE OF AUTHORITIES

(continued)

National Comm’n on Law Observance and

Enforcement,

Report on the Enforcement of the Prohibition

Laws of the United States 100–01 (1931) ........ 7

National Registry of Exonerations,

2022 Annual Report (May 8, 2023) ................ 18

National Registry of Exonerations,

Innocents Who Plead Guilty

(24 Nov. 2015) .......................................... 17, 18

Allison Redlich & Catherine Bonventre,

Content and Comprehensibility of Juvenile

and Adult Tender-of-Plea Forms: Implications

for Knowing, Intelligent, and Voluntary Guilty

Pleas, 39 Law & Hum. Behav. 162 (2015)..... 19

Allison Redlich,

The Validity of Pleading Guilty, in Advances

in Psychology and Law, 1-27 (M. K. Miller and

B. Bornstein eds., 2016) ..................... 19, 20, 21

Allison Redlich & Reveka Shteynberg,

To Plead or Not to Plead: A Comparison of

Juvenile and Adult True and False Plea

Decisions, 40 Law & Hum. Behav. 611

(2016) .............................................................. 20

viii

TABLE OF AUTHORITIES

(continued)

Allison Redlich & Alicia Summers,

Voluntary, Knowing, and Intelligent Pleas:

Understanding the Plea Inquiry, 18 Psychol.,

Pub. Pol’y, & L. 626 (2012) ............................ 21

Ram Subramanian, Léon Digard, Melvin

Washington II & Stephanie Sorage,

In the Shadows: A Review of the Research on

Plea Bargaining, Vera Institute (2020)... 16, 17

Transcript of Oral Arg. at 61–62,

Class v. United States, 138 S. Ct. 798 (2018)

(No. 16-424) ...................................................... 5

Miko M. Wilford & Gary L. Wells,

Bluffed by the Dealer: Distinguishing False

Pleas from False Confessions, 24 Psychol.,

Pub. Pol’y, & L. 158 (2018) ...................... 12, 13

Tina M. Zottoli, Tarika Daftary-Kapur, Georgia M.

Winters & Conor Hogan,

Plea Discounts, Time Pressures, and FalseGuilty Pleas in Youth and Adults Who Pleaded

Guilty to Felonies in New York City, 22 Psych.,

Pub. Pol’y & L. 250 (2016) ....................... 13, 14

1

INTEREST OF THE AMICUS CURIAE 1

Founded in 2022, the Plea Bargaining Institute

(PBI) was established to provide a global intellectual

home for researchers, practitioners, policymakers,

and advocacy groups to share knowledge and promote

collaboration related to plea bargaining and its role in

criminal processes. In a criminal system that is

dominated by guilty pleas, the need for sustained

research on these issues is imperative. The PBI

strives to ensure that practitioners, policy makers,

advocacy organizations, and courts have access to

important research findings and case developments so

that this information might assist them in their work.

Amicus seeks to share academic plea bargaining

research with this Court relevant to this case.

SUMMARY OF ARGUMENT

That the Hunter case concluded with a plea of

guilty is not surprising. As acknowledged by this

Court in Lafler v. Cooper, 566 U.S. 156, 170 (2012),

“[C]riminal justice today is for the most part a system

of pleas, not a system of trials.” It is also unsurprising

that Hunter’s plea bargain included a waiver of the

No person other than the Amicus and its counsel have

authored or contributed to this Brief in whole or in part.

Further, no person or entity, other than the Amicus and its

counsel and affiliated institution, Belmont University College of

Law, has made a monetary contribution toward its preparation

or submission.

1

2

right to appeal his conviction and sentence. As noted

by the American Bar Association in the Plea Bargain

Task Force Report (2023), demands for waivers

during plea bargaining that go well beyond the trial

right are common. See ABA CJS, Plea Bargain Task

Force Report, at 25 (Feb. 22, 2023). In accepting the

Hunter case, the Court has the important opportunity

to consider the validity of waivers of rights, including

appellate rights, in return for plea bargains. In

contemplating this issue, Amicus encourages the

Court to recognize that plea bargaining is not

inherently reliable and, therefore, the imposition of

limitations and guardrails for plea bargaining

practices is vital to the establishment of an accurate,

just, and constitutional plea bargaining system.

Far too often in considering issues such as

those presented in the Hunter case, the Court has

conducted its analysis from the unsupported position

that plea bargaining is inherently reliable. In Brady

v. United States, 397 U.S. 742 (1970), for example, the

Court briefly considered the risk that plea bargaining

might have an innocence problem but dismissed these

concerns and concluded that there was no reason to

doubt the accuracy of the plea. See Brady, 397 U.S. at

758. In 1975, in the case of Menna v. New York, 423

U. S. 61 (1975), the Court more explicitly described its

starting point for analyzing how plea bargaining

jurisprudence might evolve. In Menna, the Court

stated, “[A] counseled plea of guilty is an admission of

factual guilt so reliable that, where voluntary and

intelligent, it quite validly removes the issue of

3

factual guilt from the case.” See Menna v. New York,

423 U. S. 61, 62 n.2 (1975). From this flawed starting

place of faith regarding the reliability of guilty pleas,

it is easy to see why so few limitations and guardrails

have been imposed on plea bargaining practices in the

55 years since Brady.

Research over the past decades, however, has

now clearly demonstrated that individuals plead

guilty for many reasons, some of which have little or

nothing to do with their actual guilt. This research

has also added meaningfully to our understanding of

plea bargaining’s innocence problem and the

psychological forces behind the significant number of

false pleas of guilty by the innocent. Finally, research

during this time has also raised troubling questions

regarding defendants’ actual knowledge and

understanding of the plea bargaining process and the

deals into which they enter. These findings lead

squarely to the conclusion that plea bargaining is far

from a reliable indicator of actual guilt.

In undertaking its review of the Hunter case,

therefore, the Court should correct the unsupported

assumption that plea bargaining is inherently

reliable. Instead, the Court should begin its analysis

of this and all future plea bargaining cases by

acknowledging that plea bargaining is not inherently

reliable. The Court should also take this opportunity

to recognize, as encouraged by the American Bar

Association Plea Bargain Task Force Report (2023)

and ABA Resolution 502 (2023), that “innocent people

4

sometimes plead guilty to crimes they did not

commit.” See ABA CJS, Plea Bargain Task Force

Report, p.20 (Feb. 22, 2023); ABA Resolution 502

(2023); see also American Bar Association, The Cost of

Plea Bargains: Reflections and Recommendations

from the ABA Plea Bargain Task Force (Lucian E.

Dervan, Russell D. Covey, & Thea Johnson eds. 2024).

This new starting position from which to

undertake plea bargaining jurisprudential analysis

will have important positive impacts on the criminal

system.

A plea bargaining system that is not

inherently reliable, one in which innocent defendants

falsely plead guilty, and one in which defendants lack

true knowledge regarding the process and to what

they have agreed is a plea bargaining system in need

of meaningful limitations and guardrails. That work

can begin in the Hunter case as the Court considers

how to protect a defendant’s constitutional rights and

the Constitution itself in a system where most people,

including the innocent, plead guilty to an agreement

containing a non-negotiable blanket waiver of

appellate rights.

Whatever result the Court

ultimately reaches in Hunter regarding where the

limits and guardrails should fall, Amicus urges the

Court to deliver its opinion in a manner that

acknowledges and considers the realities of our

modern plea bargaining system.

5

ARGUMENT

I.

Plea bargaining is a relatively modern

American creation, the inner workings

and psychological aspects of which are

better understood today.

As acknowledged by this Court in Lafler v.

Cooper, 566 U.S. 156, 170 (2012), “[C]riminal justice

today is for the most part a system of pleas, not a

system of trials.” Almost 98 percent of criminal

convictions in the federal system and 94 percent of

criminal convictions in the state systems result from

a plea of guilty. See Missouri v. Frye, 566 U.S. 134,

143 (2012). While the exact number of these pleas

resulting from “plea bargaining” is unknown, the

government has estimated that approximately 75

percent of such pleas of guilty in the federal system

are induced by threats of further punishment if a

defendant proceeds to trial, by offers of leniency in

return for waiving the constitutionally protected right

to trial, or both. See Transcript of Oral Arg. at 61–62,

Class v. United States, 138 S. Ct. 798 (2018) (No. 16424).

Despite bargained justice’s dominance today,

this form of criminal case resolution is a relatively

modern American creation. See Lucian E. Dervan,

Bargained Justice: The History, Psychology, and

Future of Plea Bargaining, 31 Federal Sentencing

Reporter 239 (2019); Lucian E. Dervan, Bargained

6

Justice: Plea Bargaining’s Innocence Problem and the

Brady Safety-Valve, UTAH L. REV. 51 (2012); Albert W.

Alschuler, Plea Bargaining and Its History, 29 Colum.

L. Rev. 1 (1979). In both American and English

common law prior to the twentieth century, the use of

threats of punishment or offers of leniency to induce a

plea of guilty was impermissible. See e.g., Bram v.

United States, 168 U.S. 532 (1897); Rex v.

Warickshall, 168 Eng. Rep. 234 (1783). When plea

bargaining began to appear more regularly in the

United States after the American Civil War,

therefore, appellate courts responded with sharp

condemnation. See e.g., Wright v. Rindskopf, 43 Wis.

344, 354 (1877) (plea bargaining is “hardly, if at all

distinguishable in principle from a direct sale of

justice.”).

Despite the strong language in opposition to

bargains contained in case law from the 18th and 19th

centuries, examples of plea bargaining in the trenches

of the American criminal justice system can be found

as early as the late 1700s in sporadic geographic

locations. For example, according to Professor George

Fisher, forms of plea bargaining occurred in liquor law

violations in Middlesex County, Massachusetts,

during the late 1700s. See George Fisher, Plea

Bargaining’s Triumph: A History of Plea Bargaining

in America (Stanford Books 2003). Professor Dan

Canon’s research also identifies early examples of

plea bargaining in Massachusetts and, eventually,

New England in the mid-1800s. See Dan Canon,

7

Pleading Out: How Plea Bargaining Creates a

Permanent Criminal Class (Basic Books 2022).

While case law continued to look with suspicion

on plea bargaining in the early twentieth century, this

period saw the beginnings of plea bargaining’s rise to

dominance in the shadows. This occurred in part

because plea bargaining became a necessary tool to

address the swelling dockets brought on by

Prohibition and overcriminalization during the first

half of the 1900s. See National Comm’n on Law

Observance and Enforcement, Report on the

Enforcement of the Prohibition Laws of the United

States 100–01 (1931) (discussing the need for plea

bargaining to address the overwhelming number of

cases brought under Prohibition laws).

Although little data are available regarding the

widespread growth of plea bargaining in the early

20th century, data on pleas of guilty are available.

These data illustrate that between the early 20th

century and 1925, the guilty plea rate in federal court

rose from 50 percent to 90 percent. Much of this

increase is likely attributable to the growth of plea

bargaining in the shadows. See Lucian E. Dervan,

Bargained Justice: Plea Bargaining’s Innocence

Problem and the Brady Safety-Valve, Utah L. Rev. 51,

59 (2012).

Plea bargaining began emerging from the

shadows in the second half of the twentieth century,

8

particularly as this Court and institutions such as the

American Bar Association began both acknowledging

the role of plea bargaining in the criminal justice

system and identifying the benefits afforded by

permitting these types of resolutions.

See e.g.

American Bar Association, Project on Standards for

Criminal Justice, Standards Relating to Pleas of

Guilty 2 (1968). A pivotal point, of course, was this

Court’s 1970 decision in Brady v. United States, 397

U.S. 742 (1970), which legitimized the concept of plea

bargaining as long as the plea of guilty was voluntary

and intelligent and any offers of leniency or threats of

punishment did not overbear the will of the

defendant. See Brady v. United States, 397 U.S. 742,

752–58 (1970).

Acknowledging and approving, even if tepidly,

the use of plea bargaining in Brady created an

opportunity for an already overwhelmed criminal

justice system to continue to benefit from the

efficiency of this process. The Brady decision also

created an environment in which plea bargaining

could leave the shadows of its rise and, perhaps,

become better regulated and more regularly examined

by the courts. This sentiment was expressed by this

Court eight years after Brady when it stated in

Bordenkircher v. Hayes, “[A] rigid constitutional rule

that would prohibit a prosecutor from acting

forthrightly in his dealings with the defense could

only invite unhealthy subterfuge that would drive the

practice of plea bargaining back into the shadows

from which it has so recently emerged.” Bordenkircher

9

v. Hayes, 434 U.S. 357, 365 (1978). In many respects,

cases decided since Brady have embarked on this

course, seeking to add detail and clarity to the

operation and impact of bargained justice.

Throughout these many decades, however,

decisions appear often to have been influenced by the

unsupported assumption that pleas of guilty are

reliable. This assumption dates back to the Brady

decision itself, where the Court said, “[W]e would

have serious doubts about this case if the

encouragements of guilty pleas by offers of leniency

substantially

increased

the

likelihood

that

defendants, advised by competent counsel, would

falsely condemn themselves. But our view is to the

contrary….” Brady v. United States, 397 U.S. 742,

758 (1970). This unsupported assumption appeared

again in the 1975 case of Menna v. New York, 423 U.S.

61, 62 n.2 (1975), which stated, “[A] counseled plea of

guilty is an admission of factual guilt so reliable that,

where voluntary and intelligent, it quite validly

removes the issue of factual guilt from the case.”

Again, in the 1985 case of Hill v. Lockhart, 474 U.S.

52, 58 (1985), the Court, quoting language from the

United States Court of Appeals for the Seventh

Circuit, similarly said, “[T]he concern that unfair

procedures may have resulted in the conviction of an

innocent defendant is only rarely raised by a petition

to set aside a guilty plea.” Hill v. Lockhart, 474 U.S.

52, 58 (1985). More recently, this concept of the

reliability of pleas of guilty was echoed in a 2017

dissent in the case of Lee v. United States. See Lee v.

10

United States, 582 U.S. 357, 378 (2017) (Thomas, C.,

dissenting) (citing the above quotes from Hill and

Menna). Importantly, no research was offered to

support any of the statements of reliability advanced

in the above cases from 1970 through 2017. These

statements, rather, appear to have been ipse dixit.

It is understandable, of course, that one would

assume that pleas of guilty are reliable indicators of

actual guilt. We would all like to believe that if faced

with an opportunity to falsely confess in return for a

favorable disposition, we would nevertheless stand

our ground and assert our innocence. Psychological

research, however, demonstrates that this is not in

fact how people respond in these situations and that

pleas of guilty are far from reliable indicators of actual

guilt. People, it turns out, plead guilty for many

reasons, some of which have little or nothing to do

with whether they committed the alleged offense.

Amicus writes to provide the Court with

information regarding our modern scientific

understanding of plea bargaining and defendant

decision-making processes in hopes that this and

future decisions will not rely on prior assumptions

regarding the reliability of pleas of guilty, but rather,

will reflect the reality of modern plea bargaining, the

phenomenon of false pleas of guilty, and the

significant questions that exist regarding defendants’

knowledge of the system and the deals into which they

are entering. With the backdrop of this modern

understanding of the plea bargaining system, the

11

importance of the right to appeal, particularly

regarding alleged constitutional violations, becomes

clear.

II.

Research demonstrates the existence of

the innocent defendant’s dilemma, and

that plea bargaining is not inherently

reliable.

In the late 2000s, a study paradigm was

developed to test how likely it might be that an

innocent individual would falsely plead guilty in

return for the benefits of a bargain. See Lucian E.

Dervan & Vanessa A. Edkins, The Innocent

Defendant’s Dilemma: An Innovative Empirical Study

of Plea Bargaining’s Innocence Problem, 103 J. Crim.

L. & Criminology 1 (2013). To test this aspect of

defendant decision-making, Professor Lucian Dervan

and Dr. Vanessa Edkins invited students to

participate in a project that the students believed was

designed to test individual work versus group work on

LSAT-style questions. The inquiry, of course, was

really a deception study designed to explore how the

students would respond when accused of cheating.

Dervan and Edkins structured the study so

that only about half of the students engaged in

academic misconduct during the testing. Regardless

of factual guilt or innocence, however, and without yet

knowing which of the participants had cheated, all

participants were accused of misconduct and offered a

12

bargain in return for confessing to the alleged offense.

The benefits of pleading guilty included a reduced

punishment and a faster resolution. Participants

were also told that those declining the plea offer

would be referred to an “Academic Review Board” for

adjudication. The board was described in a manner

that made it sound very similar to a criminal trial,

with the right to present evidence and testify.

The results of the study were insightful

regarding whether innocents will falsely plead guilty

in significant numbers. In the study, 89 percent of the

guilty participants took the plea offer. Regarding the

innocents, 56 percent of the participants were willing

to falsely confess to misconduct they had not

committed in return for the benefits of the bargain.

See Lucian E. Dervan & Vanessa A. Edkins, The

Innocent Defendant’s Dilemma: An Innovative

Empirical Study of Plea Bargaining’s Innocence

Problem, 103 J. Crim. L. & Criminology 1, 34-38

(2013); see also Lucian E. Dervan, Class v. United

States: Bargained Justice and a System of Efficiencies,

in CATO Supreme Court Review 2017–2018, 113, 131

(2018).

These research findings have been cited widely

in both the psychological and legal communities and

have been validated several times in subsequent

studies by other labs. See e.g. Kelsey S. Henderson &

Lora M. Levett, Investigating Predictors of True and

False Guilty Pleas, 42 Law and Human Behavior 427

(2018); Miko M. Wilford & Gary L. Wells, Bluffed by

13

the Dealer: Distinguishing False Pleas From False

Confessions, 24 Psychology, Public Policy, and Law

158 (2018); Lucian E. Dervan, Vanessa Edkins, and

Thea Johnson, Victims of Coercive Plea Bargaining,

72 American University Law Review 1919, 1949-1957

(2023) (describing a revised and more elaborate

version of the original study later run by Dervan,

Edkins, and Pardieck). In 2018, Dr. Miko Wilford and

Dr. Gary Wells noted that there are now several “realstakes,” non-hypothetical, studies recording false plea

rates near or exceeding 50 percent. See Miko M.

Wilford & Gary L. Wells, Bluffed by the Dealer:

Distinguishing False Pleas from False Confessions, 24

Psychology, Public Policy, and Law 158, 166 (2018).

The above study, in combination with other

research undertaken to learn more about specific

aspects of defendant decision-making, has painted a

vivid and troubling picture of modern plea bargaining

and the phenomenon of false pleas of guilty by the

innocent. See Lucian E. Dervan, Vanessa Edkins, and

Thea Johnson, Victims of Coercive Plea Bargaining,

72 American University Law Review 1919 (2023)

(summarizing the state of psychological research

regarding false pleas of guilty and why defendants

plead guilty falsely). A commonly understood factor

that leads to false pleas of guilty are sentencing

differentials. See e.g. Tina M. Zottoli, Tarika DaftaryKapur, Georgia M. Winters & Conor Hogan, Plea

Discounts, Time Pressures, and False-Guilty Pleas in

Youth and Adults Who Pleaded Guilty to Felonies in

New York City, 22 Psych., Pub. Pol’y & L. 250, 254

14

(2016) (researchers discovered that adult defendants

received an eighty percent average reduction of the

anticipated sentence that would result from trial); see

also Brian D. Johnson, Plea-Trial Differences in

Federal

Punishment:

Research

and

Policy

Implications, 31 Fed. Sent’g Rep. 256, 257, 261 (2019)

(holding that studies consistently show large

sentencing differentials that disadvantage trial

defendants). Less well-known factors that contribute

to the phenomenon of false pleas of guilty are the role

of counsel and pretrial detention.

Regarding the role of counsel, Dr. Kelsey

Henderson and Dr. Lora Levett published a study in

2018 using a revised version of the paradigm

developed by Dervan and Edkins in the Innocent

Defendant’s Dilemma. In their version, Henderson

and Levett included testing for the influence of

advocate participation during the decision-making

process. As noted by the Brady Court in 1970,

perhaps the presence of “competent counsel” would

make plea bargaining more reliable. The research

found that the effect of advocate recommendations on

plea-decisions was significant, but not in the way

many had imagined. Where no advocate participated,

the study participants falsely pleaded guilty 35

percent of the time. Where an advocate participated

and recommended proceeding to trial, the false plea

rate dropped to 4 percent. Importantly, however,

where an advocate participated and provided only

educational information regarding the available

options, 47 percent of the study participants went on

15

to falsely plead guilty.

Where an advocate

participated and recommended pleading guilty, 58

percent of the study participants went on to falsely

plead guilty, a number higher than that found when

there was no advisor at all. Contrary to earlier

assumptions regarding the beneficial role of counsel

in preventing false pleas of guilty, these findings

demonstrate that the presence of counsel may

actually exacerbate the false plea phenomenon. See

Kelsey S. Henderson & Lora M. Levett, Investigating

Predictors of True and False Guilty Pleas, 42 Law and

Human Behavior 427, 437 (2018).

The potential for counsel to negatively

influence the reliability of plea bargaining increases

further when one examines the type of advice counsel

provide in the modern criminal system. In a study

from 2018 regarding attorney perceptions of guilty

pleas, the authors interviewed counsel in nine U.S.

states (New York, Tennessee, Wisconsin, Wyoming,

Vermont, Idaho, Iowa, Arizona, and Rhode Island).

See Rebecca K. Helm, Valerie F. Reyna, Allison A.

Franz, Rachel Z. Novick, Sarah Dincin & Amanda E.

Cort, Limitations on the Ability to Negotiate Justice:

Attorney Perspectives on Guilt, Innocence, and Legal

Advice in the Current Plea System, 24 Psych., Crime

& L. 915, 922 (2018). Roughly 78 percent of those

asked indicated that there were definitely cases in the

current system where an innocent individual should

plead guilty. “When asked whether they had ever

been involved in a case where a client chose to plead

guilty despite maintaining their innocence,” almost 90

16

percent said yes. Id. at 921. Not only were the

attorneys aware of this occurring, almost 45 percent

admitted to having advised clients they believed were

innocent to accept a favorable plea agreement. In

fact, even in cases where the defense attorney felt

there was less than a 50 percent chance of conviction,

a significant proportion stated they would recommend

to an innocent client to plead guilty. Id. at 926.

Regarding pretrial detention, a 2018 study

considered the issues of innocence, pretrial detention,

and

collateral

consequences

using

various

hypothetical scenarios. See Vanessa A. Edkins &

Lucian E. Dervan, Freedom Now or a Future Later:

Pitting the Lasting Implications of Collateral

Consequences Against Pretrial Detention in Decisions

to Plead Guilty, 24 Psychol. Pub. Pol’y & L. 204 (2018).

The results confirmed the validity of the legal

community’s concerns regarding the impact of plea

offers on both the accuracy of the system and the free

exercise of individuals’ constitutional right to trial.

First, the study once again observed plea bargaining’s

innocence problem. Second, the study found that

pretrial detention significantly influenced plea

decisions.

In particular, the rate of innocent

individuals who pleaded guilty more than tripled in

the pretrial scenarios. Lucian E. Dervan, Class v.

United States: Bargained Justice and a System of

Efficiencies, in CATO Supreme Court Review 2017–

2018, 113, 134 (2018) ; see also See Ram Subramanian,

Léon Digard, Melvin Washington II & Stephanie

Sorage, In the Shadows: A Review of the Research on

17

Plea Bargaining, Vera Institute (2020) (discussing a

study of 76,000 arrests in Delaware and finding

pretrial detention increased the likelihood of pleading

guilty by 46%); Emily Leslie & Nolan G. Pope, The

Unintended Impact of Pretrial Detention on Case

Outcomes:

Evidence from

New

York

City

Arraignments, 60 J.L. & Econ. 529, 530, 536 (2017)

(examining almost one million arraignments for

felonies and misdemeanors in New York City from

2009-2013 and finding a link between pretrial

detention and increased plea rates).

Beyond the research studies discussed above

that bring the unreliability of plea bargaining and the

fact that innocents are willing to falsely confess into

focus, there is empirical and anecdotal evidence from

actual cases. Consider, for example, a 2015 report

from the National Registry of Exonerations on the

issue of “Innocents Who Plead Guilty.” See Innocents

Who Plead Guilty, National Registry of Exonerations

(24

Nov.

2015),

available

at

http://www.law.umich.edu/special/exoneration/Docu

ments/NRE.Guilty.Plea.Article1.pdf.

Of the first

1,700 exonerees in the database, 15 percent had

pleaded guilty to an offense they had not committed.

In some types of cases, the rates of false pleas were

astonishingly high. For example, 66 percent of drug

crime exonerations involved a false plea of guilty. In

Harris County, Texas, the report noted that there had

been 71 drug exonerations since 2014, and the

defendant in every case had pleaded guilty. According

to the National Registry of Exonerations, “[M]ost of

18

these defendants accepted plea bargains to possession

of illegal ‘drugs’ because they faced months in jail

before trial, and years more if convicted.” Id. at 2.

Consider further that by the end of 2022, the

National Registry of Exonerations had 3,284

exonerations within its dataset, and 25 percent of

those involved a false plea of guilty. Of the entire

dataset, more than 40% are “no-crime exonerations,”

which are exonerations where the exoneree was

convicted of a crime that never actually occurred. In

this category, a startling 48 percent of the cases

involved false pleas of guilty by the innocent. See Nat’l

Registry of Exonerations, 2022 Annual Report, at 11

(May 8, 2023); see also Thea Johnson, Fictional Pleas,

94 Indiana Law Journal 855 (2019).

Research offers a new lens through which to

view plea bargaining and the picture this research

presents, in combination with empirical and

anecdotal data collection, is that plea bargaining is

not inherently reliable. This is true even where

competent counsel is present.

Plea bargaining

jurisprudence must be undertaken with these

realities in mind, particularly when considering when

and how to impose limitations and guiderails on the

system.

19

III.

Research raises significant questions

regarding defendants’ knowledge and

understanding of plea bargaining and

their plea agreements

Research has not only demonstrated the

presence of plea bargaining’s innocence problem but

has also raised significant concerns regarding

whether defendants understand the plea bargaining

process or the specifics of the agreements into which

they are entering. See Allison Redlich, The Validity

of Pleading Guilty, in Advances in Psychology and

Law, 1-27 (M. K. Miller and B. Bornstein eds., 2016).

As a starting place, research indicates that 70%

of adult inmates read at or below the 6th grade

level. See id. This is particularly significant in

jurisdictions where defendants read and sign tenderof-plea forms. In a study from 2015, the authors

examined 208 sample forms and concluded that a

reading level of 11th-12th grade was required to fully

understand the material. See Allison Redlich and

Catherine Bonventre, Content and Comprehensibility

of Juvenile and Adult Tender-of-Plea Forms:

Implications for Knowing, Intelligent, and Voluntary

Guilty Pleas, 39 Law and Human Behavior 162

(2015).

Judicial plea colloquies are also hard for the

typical defendant to understand. The sample plea

colloquy questions from the Benchbook for U.S.

20

District Court Judges (2013) require a reading grade

level of 13.3, college level. See Allison Redlich, The

Validity of Pleading Guilty, in Advances in

Psychology and Law, 1-27 at 10 (M. K. Miller and B.

Bornstein eds., 2016). In one study researchers

concluded that many defendants would not

understand the questions even when the questions

were read to the defendants. “Although there is

limited research on defendants’ oral comprehension,

one study found that the average listening

comprehension ability of recently arrested jail

detainees was 9th grade.” Id.

Research has also explored the comprehension

of defendants engaged in the plea process itself. In a

2016 study, researchers measured the vocabulary

comprehension of participants 13-24 years of age

using words from a tender-of-plea form and judicial

plea colloquy. The study concluded that “adults

lacked adequate comprehension.” Allison Redlich,

The Validity of Pleading Guilty, in Advances in

Psychology and Law, 1-27 at 10 (M. K. Miller and B.

Bornstein eds., 2016). As an example, more than 90%

of the adults could not accurately define the word

“concession.”

However, when asked if they

understood the plea form and had no questions, the

participants responded “yes.” See Allison Redlich and

Reveka Shteynberg, To Plead or Not to Plead: A

Comparison of Juvenile and Adult True and False

Plea Decisions, 40 Law and Human Behavior 611

(2016).

21

Finally, another study interviewed individuals

after pleading guilty. When asked questions about

the process, similar to what they are asked in plea

hearings, “89% said they understood the plea process,

96% said they understood the possible penalties

associated with the plea, and 87% said they

understood the legal proceedings.” Allison Redlich,

The Validity of Pleading Guilty, in Advances in

Psychology and Law, 1-27 at 11 (M. K. Miller and B.

Bornstein eds.,

2016).

However, when a

comprehension test was administered, two-thirds of

the participants answered 60% or more of the

questions wrong. Importantly, these individuals had

just entered their pleas. See Allison Redlich and

Alicia Summers, Voluntary, Knowing, and Intelligent

Pleas: Understanding the Plea Inquiry, 18 Psychology,

Public Policy, and Law 626 (2012).

Pleas of guilty must be entered knowingly. See

Boykin v. Alabama, 395 U.S. 238, 244 (1969). Yet

research raises important questions regarding

whether this burden is faithfully being satisfied

before pleas are accepted. In a system in which 95-98

percent of convictions come from pleas of guilty,

uncertainty

regarding

whether

defendants

understand the plea bargaining process, the

agreements into which they are entering, and the

rights that they are waiving raises significant issues

around fairness, justice, and accuracy.

These

questions are particularly pronounced in matters

such as the Hunter case where the district court judge

made statements regarding the defendant’s appellate

22

rights that contradicted the written plea agreement

and counsel for the government did not correct the

record.

Plea bargaining jurisprudence must be

undertaken with these realities in mind, particularly

when considering when and how to impose limitations

and guardrails on the system.

CONCLUSION

The Hunter case presents an important and

necessary opportunity for the Court to acknowledge

that plea bargaining is not an inherently reliable

indicator of actual guilt. Further, the Hunter case

offers the opportunity to finally acknowledge that, as

anecdotal cases, empirical evidence, and psychological

studies demonstrate, innocent defendants plead

guilty in numbers that are cause for concern and

significant questions exist regarding defendants’

knowledge of the system and of the plea agreements

into which they are entering.

The Hunter case and all future plea bargaining

jurisprudence should be examined through the lens of

these realities, rather than with the false and

unsupported assumption of reliability that has

pervaded cases since Brady in 1970. “[C]riminal

justice today is for the most part a system of pleas, not

a system of trials.” Lafler v. Cooper, 566 U.S. 156, 170

(2012).

Therefore, we must begin creating

jurisprudence regarding this fundamental aspect of

our system that recognizes the true nature of

23

bargained justice and the way efficiency impacts

accuracy.

Though plea bargaining has existed in the

shadows of our criminal justice system for well over

100 years and grew to dominance in the twentieth

century, we are still learning much regarding the

process by which defendants engage in decisionmaking within the system. Today, we know that

defendants plead guilty for a variety of reasons, some

of which have little or nothing to do with actual guilt.

As the Court considers the Hunter matter and what

the future might hold for plea bargaining

jurisprudence more generally, the Court should

ensure that this and future decisions are not made

based on prior unsupported assumptions, but rather,

that the path forward is guided by what we now know

about bargained justice. Through such an informed

and considered process, the Court can create a fairer

and more just system of pleas while still allowing for

the beneficial aspects of bargains. Such a process will

also place accuracy and concerns regarding

constitutionality above efficiency.

For the foregoing reasons, Amicus urges the

Court to establish appropriate limitations and

guiderails for waivers of rights as part of plea

bargaining.

24

Respectfully submitted,

LUCIAN E. DERVAN

Counsel of Record

Belmont University

College of Law

1900 Belmont Blvd

Nashville, TN 37212

(615) 460-8271

lucian.dervan@belmont.edu

Counsel for Amicus Curiae