Professor Alkon describes her experiences using plea bargaining exercises in her first year, first semester, criminal law class

Alkon, Cynthia

Texas A&M University School of Law

Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 3-2013 Making a Deal in Criminal Law Cynthia Alkon Texas A&M University School of Law, calkon@law.tamu.edu Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar  Part of the Law Commons Recommended Citation Cynthia Alkon, Making a Deal in Criminal Law, 10 Ohio St. J. Crim. L. 643 (2013). Available at: https://scholarship.law.tamu.edu/facscholar/201 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact aretteen@law.tamu.edu. Making a Deal in Criminal LawCynthia Alkon*In my first year, first semester, criminal law class I assign two separate pleabargaining exercises.' Students love these exercises, although not usually for thesame reason that I love them. The plea negotiations tend to be the first timestudents get to act as lawyers and being "in role" is an exhilarating experience,even for those who swore on the first day of class that, "I definitely don't want togo into criminal law." I enjoy the plea bargaining exercises because they do agreat job of illustrating specific doctrinal concepts and provide an opportunity todiscuss professionalism, ethics, the importance of negotiation skills for all lawyers,and the realities of our criminal justice system.The first plea bargain is a three-defendant drug sales case that I assign early inthe semester, after we have covered accomplice liability. The case is a classicprisoners' dilemma. One defendant is the "heavy" and the other two have lessobvious involvement in the offense and little or no criminal record. The two lessobviously culpable defendants will get a much better deal if they agree to testifyagainst the third defendant. However, if all three defendants refuse to testify, thereis a chance that all will be acquitted due to insufficient evidence. Virtually all ofthe groups conclude a plea agreement with at least two of the defendants. The"heavy" is usually the defendant who has the hardest time concluding a deal.Occasionally a group will hold fast and all three defendants will refuse to "snitch"no matter how much time they might get.Although most groups reach agreement, the deals tend to vary widely in termsof whether the defendants get probation or prison and include wide variations inwhat the testimony of one or more of the defendants is ultimately worth to theindividual student-prosecutors. This negotiation exercise illustrates the fact thateven though each defendant could be held criminally liable for the same offense itdoes not mean that each defendant will get the same sentence. Students oftenexpress surprise about the significant differences in the deals as they tend toassume that everyone will see the case exactly as they have and therefore have thesame experience and same deals (or lack of deals). This exercise provides anAssociate Professor of Law, Texas Wesleyan University School of Law.For other ideas for interactive exercises and problems to use in Criminal Law courses, seeCriminal Law, AM. BAR Ass'N SEC. OF Disp. RESOL. LEGAL EDUC., ADR, & PRAC. PROBLEM SOLVING(LEAPS) PROJECT, http://leaps.uoregon.edu/content/criminal-law (last visited Nov. 4, 2012);Approaches and Sample Lesson Modules for Criminal Law, AM. BAR Ass'N SEC. OF DIsp. RESOL.LEGAL EDUC., ADR, & PRAC. PROBLEM SOLVING (LEAPS) PROJECT,http://leaps.uoregon.edu/content/approaches-and-sample-lesson-modules-criminal-law (last visitedNov. 4, 2012)643OHIO STATE JOURNAL OF CRIAHNAL LAWopportunity to discuss how variable criminal sentences can be and that there isn'tone single standard sentence for any offense. Students also learn that a lawyer'sopinion about what is appropriate can make a big difference in the outcome of thecase.Due to the fact that I assign this plea negotiation exercise early in the firstsemester of law school, I also provide some basic information about pleabargaining, the ethical duties of lawyers, the specific ethical duties of prosecutors,and sentencing (such as the difference between probation and parole). I find thisbasic explanation helps those students who are initially hesitant to start thenegotiation "because I don't know what to do." It also prevents wide-scale ethicalviolations.In the second plea negotiation exercise, the defendant is a nineteen-year-oldwoman charged with attempted murder for shooting her sister in the leg.2 Thegeneral facts include information about what happened on the day of the shooting,but no information about why this young woman would shoot her sister. Both theprosecution and the defense have confidential information that offers differentclues as to the reasons. In addition, the defense lawyer's confidential informationincludes specific facts that could be a defense as either an excuse or a justification(depending on how the students interpret the facts and apply them to the law). I dothis plea bargaining exercise towards the end of the semester and it requiresstudents to review the law of homicide, excuses, and justifications. It also providesa nice review of the theories of punishment and some interesting ethical issuesregarding disclosure of information (from both sides). This exercise forcesstudents to think about what facts support, or fail to support, the charge ofattempted murder. This case also forces students to decide whether the defense ofnot guilty by reason of insanity is appropriate. Through this negotiation exercisestudents realize that mental illness can be a complex issue in the context ofcriminal cases and confront the difficult choices that both prosecutors and defenselawyers face in deciding how to best handle cases with mental health problems asan underlying cause.I conduct both of these plea bargaining exercises in large section classes withmore than eighty students. I assign the students their roles and their negotiatingteams and give them these assignments on the same day that they pick up the hardcopies with their roles. In both exercises there is a general information sheet forboth sides and separate confidential information specifically for the defenselawyers and prosecutors. The students are instructed that it is an ethical violationto pick up the confidential roles for anyone other than their assigned role. For bothnegotiation exercises I give the students a week to conduct the negotiation outsideof class, with strict instructions to not discuss their plea negotiations with theirclassmates until we discuss them in class. I explain that this is due to the fact thatstudents will negotiate at different times and that no student should have an2 I am happy to send electronic copies of this plea negotiation exercise if you send an emailrequesting it to: cynthiaalkon@gmail.com or calkon@Iaw.txwes.edu.644 [Vol 10:2MAKING A DEAL IN CRIMINAL LAWadvantage because other students have given them information that is not in thegeneral information or their specific confidential information. I do not requirethem to conduct the negotiations face to face and many choose to negotiate viaemail, telephone, or text messages. Inevitably, the method of negotiation affectsthe negotiation outcomes and provides an opportunity to talk about strategicdecisions and the importance of thinking beyond what seems to be the mostconvenient at the moment and encourages students to think instead about what is intheir clients' best interests.The most active class discussions of the semester are during the two classperiods when we debrief the plea negotiations (one full class period for eachnegotiation). The debrief is divided into four broad categories: the actualoutcomes or deals for the negotiation; professionalism issues, including ethics; thespecific doctrinal areas; and the basics of negotiation theory, as it can be applied toeach exercise. Students are required to turn in "plea bargaining outcome sheets"that briefly describe the plea deals or the main issues that prevented them fromcoming to agreement. I consolidate this information to show them the actualoutcomes of the negotiations for the class. I also discuss the ethical issues thatarise. Unfortunately, it is not unusual for students to misrepresent information totheir counterparts during the negotiation or for prosecutors to commit Bradyerrors.4 This gives me an opportunity to discuss both the impact in the context ofthis particular negotiation and the broader reputational issues including the factthat students are forming their professional reputations in law school during classexercises and discussions. I ask students to consider basic negotiation theory byexplaining what they think the underlying interests are for both the prosecutors andthe defense lawyers. I also ask about the process of preparing for the negotiation.In the first negotiation of the semester many students do not consider the interestsof their counterparts, nor do they consider the importance of who they arenegotiating with. Often, by the time they conduct the second negotiation (withdifferent assigned partners) their preparations include finding out more informationabout who they will be negotiating with and preparing arguments/approachesspecific to their counterpart. From a teaching standpoint, these exercises illustrateboth doctrinal and practice points beyond the limits of case analysis or in-classhypotheticals. And, through these plea bargaining exercises I see students startingto develop their professional identities as lawyers. I also see their clear excitementat being able to put their newfound doctrinal knowledge to work.I am also happy to send electronic copies of the PowerPoint presentations from theseclasses.4 Brady v. Maryland, 373 U.S. 83 (1963). Before the first negotiation of the semester I givea basic explanation of Brady error and cite to this case.2013] 645

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