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Introduction I. The Lack of Prosecutorial Transparency A. Prosecutors as Enforcement Outliers B. The Rise of Plea Bargaining C. Prosecution Policies Concerning Plea Bargaining D. Efforts to Open the Black [...], Where the vast majority of criminal cases are resolved without a trial, the criminal system in the United States is a system of pleas, not trials. While a plea, its terms, and the resulting sentence entered in court are all public, how the outcome was negotiated remains almost entirely nonpublic. Prosecutors may resolve cases for reasons that are benign, thoughtful, and well-calibrated--or discriminatory, self-interested, and arbitrary--with very little oversight or sunlight. For years, academics and policymakers have called for meaningful data to fill this crucial void. In this Article, we open the "black box" of prosecutorial discretion by tasking prosecutors with documenting detailed case-level information concerning plea bargaining. This is not a hypothetical or conceptual exercise, but rather the product of theory, design, and implementation work by an interdisciplinary team. We collected systematic data from two prosecutors' offices for one year. The Article describes how the data-collection methodology was designed, piloted, and implemented, as well as the insights that have been generated. Our system can be readily adapted to other offices and jurisdictions. We conclude by discussing how documenting the plea-bargaining process can affect prosecution practices, defense lawyering, judicial oversight, and public policy, its constitutional and ethical implications, and its broader implications for democratic legitimacy. An open-prosecution approach is feasible and, for the first time in the United States, it is in operation.

Alibis play a critical role in the criminal justice system. Yet research on the process of alibi generation and evaluation is still nascent. Indeed, similar to other widely investigated psychological phenomena in the legal system - such as false confessions, historical claims of abuse, and eyewitness memory - the basic assumptions underlying alibi generation and evaluation require closer empirical scrutiny. To date, the majority of alibi research investigates the social psychological aspects of the process. We argue that applying our understanding of basic human memory is critical to a complete understanding of the alibi process. Specifically, we challenge the use of alibi inconsistency as an indication of guilt by outlining the "cascading effects" that can put innocents at risk for conviction. We discuss how normal encoding and storage processes can pose problems at retrieval, particularly for innocent suspects that can result in alibi inconsistencies over time. Those inconsistencies are typically misunderstood as intentional deception, first by law enforcement, affecting the investigation, then by prosecutors affecting prosecution decisions, and finally by juries, ultimately affecting guilt judgments. Put differently, despite the universal nature of memory inconsistencies, a single error can produce a cascading effect, rendering an innocent individual's alibi, ironically, proof of guilt. Copyright © 2017 John Wiley & Sons, Ltd.

Decades of memory research have demonstrated a dire need for effective methods of correcting misinformation, particularly once it has been encoded. However, much of this research has exposed participants to misinformation first then provided a correction, and used indirect memory questions. Using a misinformation effect (ME) paradigm, in which participants' memory is distorted by misleading postevent information, we examine whether corrections can combat memory distortion on direct memory tests. Experiment 1 showed corrections greatly reduced the ME. Experiment 2 replicated this finding with a longer lag time (3 min) between exposure to misinformation and its correction, except for participants that read only the misinformation and its correction. Experiment 3 ruled out the possibility that participants reported the most recent information they read, suggesting participants evaluate the correction's veracity. Finally, a meta-analysis of the three experiments reiterates that corrections may be effective in combating misinformation.

We examine a new paradigm for jury instructions regarding eyewitness testimony, in which the judge provides concise reasons why jurors should discount an eyewitness's courtroom confidence and instead focus on the eyewitness's confidence at the time of a police lineup. In Study 1, 1,614 participants ("mock jurors"), representative of the U.S. population, viewed videos of eyewitness testimony and judicial instructions. We found that instructions using the reason-based paradigm reduced guilty votes. Study 2 (N = 2,911) examined whether reason-based instructions sensitized jurors to weak (low initial confidence) versus strong (high initial confidence) eyewitness identifications, and whether the instructions needed to be directive ("You should consider ..."). Jurors who heard the instructive, reason-based instructions better differentiated between more and less reliable eyewitnesses relative to the other instruction conditions. These results suggest that reason-based jury instructions can increase discriminability among laypersons, and that judges should be mindful in phrasing and communicating such instructions. General Audience Summary: Eyewitnesses who are highly confident when they pick someone from a lineup are more likely to be accurate than eyewitnesses who have low confidence in their decisions. However, this confidence-to-accuracy relationship breaks down by the time an eyewitness testifies at trial; that is, an eyewitness's confidence on the stand is not indicative of accuracy. Unfortunately, an eyewitness's confidence can increase over time even though their memory does not get more accurate, a phenomenon known as "confidence inflation." Confidence inflation is a large problem for the criminal legal system, as jurors find highly confident eyewitnesses very persuasive. Indeed, many wrongful convictions happen because an inaccurate eyewitness testified with high confidence at trial. Jury instructions, which are read to the jury at the end of a trial to inform them how they might weigh different pieces of evidence, have largely been unsuccessful in changing how jurors view eyewitness evidence, and have never explained confidence inflation. We draw on psychological research that finds providing an explanation, or reason, is the most effective way to convince people to rely on one piece of information (lineup confidence) over another (courtroom confidence). Thus, we crafted "reason-based instructions" that briefly explain the memorial processes that lead to confidence inflation and emphasize considering lineup confidence over courtroom confidence. In two experiments, we presented a video of an eyewitness giving testimony, a video of a judge giving our novel reason-based instructions or control instructions, and then asked the participants to serve as mock jurors by voting "guilty" or "not guilty." We found reason-based instructions decreased guilty votes, relative to non-reason-based instructions, for weak eyewitness evidence. Additionally, reason-based instructions that directed jurors on how to weigh confidence decreased guilty votes for weak eyewitness evidence, but not strong eyewitness evidence—an ideal instruction for use in the real courtrooms. [ABSTRACT FROM AUTHOR]

Plea deals resolve the vast majority of prosecuted criminal cases in the U.S. legal system. Prosecutors hold disproportionate power in plea bargaining and have been blamed for driving punitiveness and racial disparities. Progressive prosecutors aim to reverse these trends, but little is known about how they will alter plea practices. We conducted qualitative interviews with all the assistant district attorneys (ADAs, N = 19) in a mid-sized office with a newly elected progressive DA. Interviews discussed how ADAs implemented office policies and progressive goals in plea bargaining. Prosecutors described working to implement five main progressive goals in their plea decisions: (a) dismissing low-level drug possession charges; (b) avoiding over-penalization, particularly for "victimless" crimes; (c) declining to prosecute weak cases; (d) encouraging open communication with defense; and (e) promoting racial equity. Prosecutors' descriptions of how these goals guided case decisions illuminate how progressive prosecution may affect the criminal justice system through plea bargaining. [ABSTRACT FROM AUTHOR]

Research summary: We conducted a systematic review and meta‐analysis of studies that examined whether providing people with a postcard, phone call, or text message reminder of their court date reduces their likelihood of failing to appear in court. We included 12 studies (N = 79,255) that compared court appearance rates between groups of people who received a reminder to groups who did not receive a reminder. Results showed that reminders significantly reduce the odds of failure to appear in court. Further, charge type moderated reminder effectiveness; court reminders had a slightly larger effect in studies that did not include people with felony charges. However, the difference in effect size as a function of charge type was small and reminders significantly reduced the odds of failure to appear in both studies that did and did not include people with felony charges. In contrast, there was no evidence that retaining people who could not be contacted in a reminder treatment group (versus excluding them from the study or intentionally assigning them to the nonreminded control group) moderated reminder effectiveness. Finally, a narrative synthesis of studies revealed that studies using more rigorous designs generally produced smaller effects compared to studies with less rigorous designs and that effects did not differ systematically as a function of reminder formats (e.g., postcard, phone call) or frequencies (e.g., one reminder or multiple). Policy implications: Court date reminders effectively reduce failures to appear across studies, so they are an inexpensive tool for jurisdictions seeking to implement pretrial reform efforts. However, reminders offer only a modest reduction in failures to appear because they only address failures to appear that result from missing or forgetting information. Thus, reminders are not a panacea to court nonappearance. Jurisdictions should consider other programs and interventions as well. Courts could address low‐barrier nonappearances with reminders and then efficiently focus more involved resources to help more people get to court. [ABSTRACT FROM AUTHOR]

Across the country, pretrial policies and practices concerning the use of cash bail are in flux, but it is not readily possible for members of the public to assess whether or how those changes in policy and practice are affecting outcomes. A range of actors affect the jail population, including: law enforcement who make arrest decisions, magistrates and judges who rule at hearings on pretrial conditions and may modify such conditions, prosecutors and defense lawyers who litigate at hearings, pretrial-service providers who assist in evaluation and supervision of persons detained pretrial, and the custodian of the jail who supervises facilities. In the following Essay, we present the results of a case study in Durham, North Carolina. We began this project in the fall of 2018 by scraping data portraying daily pretrial conditions set for individuals in the Durham County Jail. The data was scraped from the Durham County Sheriff's Inmate Population Search website and details the individual's name, charges, bond type, bond amount, court docket number and time served. Scraping was initiated on September 1, 2018, and continues to the present. Beginning in early 2019, the judges and prosecutors in Durham, North Carolina, adopted new bail policies, reflecting a shift in the pretrial detention framework. This Essay provides a firsthand look into the pretrial detention data following these substantive policy changes. Our observations serve as a reflection on how the changes in Durham reflect broader pretrial detention reform efforts. First, we observe that a dramatic decline in the jail population followed the adoption of these policy changes. Second, we find that the policy changes corresponded with changes in aggregate conditions imposed pretrial. We describe, however, why public data that simply reports initial pretrial conditions cannot answer additional questions concerning the jail population or outcomes for the released population. Nor can this data fully answer questions concerning which actors can be credited with the observed changes. During a time in which jail populations are a subject of pressing public concern, we have inadequate information, even in jurisdictions with public jail websites, to assess policy. We conclude by discussing the implications of data limitations for efforts to reorient bail policy. [ABSTRACT FROM AUTHOR]

Experimental psychologists investigating eyewitness memory have periodically gathered their thoughts on a variety of eyewitness memory phenomena. Courts and other stakeholders of eyewitness research rely on the expert opinions reflected in these surveys to make informed decisions. However, the last survey of this sort was published more than 20 years ago, and the science of eyewitness memory has developed since that time. Stakeholders need a current database of expert opinions to make informed decisions. In this article, we provide that update. We surveyed 76 scientists for their opinions on eyewitness memory phenomena. We compared these current expert opinions to expert opinions from the past several decades. We found that experts today share many of the same opinions as experts in the past and have more nuanced thoughts about two issues. Experts in the past endorsed the idea that confidence is weakly related to accuracy, but experts today acknowledge the potential diagnostic value of initial confidence collected from a properly administered lineup. In addition, experts in the past may have favored sequential over simultaneous lineup presentation, but experts today are divided on this issue. We believe this new survey will prove useful to the court and to other stakeholders of eyewitness research.