A primetime plea that rings true

Associate Professor Thea JohnsonBy Associate Professor Thea Johnson

Legal procedurals have always been a staple of primetime TV. Viewers love the thrill of the trial, one of the most dramatic features of our justice system. It makes sense then that legal dramas generally focus on trials, and not the heart of the system – plea bargains. By one estimate, 34% of cases were resolved by plea bargain on Law & Order, when plea bargaining actually accounts for the resolution of over 95% of cases in the real criminal system. Plea bargaining is the rule, not the exception. But realistic portrayals of plea bargaining on legal procedurals are hard to find.

That’s why I was so excited by the pilot of the new show, Proven Innocent, which is both a surprise and a revelation about just how much criminal justice reform has seeped into the public consciousness. The show focuses on an attorney, Madeline Scott, who years after being exonerated following a wrongful murder conviction, graduates Yale Law School at top of her class to become a tireless fighter for the wrongly accused. In the pilot episode, the show diverges from many of the common tropes we see in modern fictionalized legal dramas. Here the defense attorney is the hero and the prosecutor is the villain. As a starting point, this is an intense shift from the common narrative about law enforcement on legal dramas. In general, prosecutors and police are venerated on television, while defense attorneys are often depicted as anywhere from hapless to unethical. (One exception to this, of course, is Perry Mason, the godfather of TV defense attorneys. But interestingly Mason never engaged in plea bargaining, even though plea bargaining has been around for over a century, and certainly during Mason’s time.)

But it’s Proven Innocent’s depiction of plea bargaining that is particularly provocative. In the pilot, the attorneys for a wrongly convicted defendant discover that the prosecutor had suppressed evidence of her innocence before the trial. We learn in this exchange that the defendant had been coerced to plead guilty. Scott’s character even mentions the real-life statistic that of 2000 recent DNA exonerations, 500 of those convictions were the result of coerced confessions. With this information in hand the defense attorneys decide that the best course of action is not to go to a judge, but to take it to the corrupt prosecutor himself, in the hopes of securing a plea deal. The defense attorneys are willing to trade the negative information for a positive outcome for their client. And the prosecutor takes the bait, wanting to hide his misdeeds.

In this one scene, we are introduced to several real-world phenomena: coerced confessions, the incredible power of the prosecutor, the secretive nature of plea bargaining (which has recently been highlighted in the case of pedophile Jeffrey Epstein), the understanding among defense attorneys that the courts are not guarantors of justice for the wrongly convicted, but rather often rubber stamps for the prosecutor’s decision. This depiction also stands in direct contrast to shows like Law & Order and its progeny (which run ceaselessly in reruns).  As I document in my research in an upcoming article, Public Perception of Plea Bargaining (forthcoming in the American Journal of Criminal Law), generally on these shows, the defendant, faced with overwhelming evidence of his guilt and his own nagging conscience about his participation in the crime, agrees to meet with the prosecutor – usually in his holding cell, where he awaits trial. His lawyer either 1) secures a promise of leniency from the prosecutors before allowing his client to talk, or 2) makes a vain attempt to coax his foolish client into silence before the client spills the beans. Either way, the defendant confesses, shares relevant information with the prosecutor about the crime and, in return, receives a punishment that is less than what he faced at trial, but nothing he is happy about. Everybody wins, including society, which benefits by the defendant receiving a harsh sentence, though somewhat more lenient than what he would have received after losing at trial. The prosecutors benefit by securing important information to help them fight crime, solve the murder and put away an even worse bad guy. This scenario largely repeats itself on network television

So why does it matter that Proven Innocent gives us a new take on plea bargaining and criminal justice more broadly? There is evidence that pop culture can impact public views on crime and law enforcement. Studies demonstrate that the public relies on television as its primary source for information on the legal system, and Americans form opinions about the justice system based on portrayals on television. One recent study found that exposure to Law & Order: SVU among college students was associated with a better understanding of rape myths.

With plea bargaining there are few avenues for the public to get contradicting information to what they see on television legal dramas because the practice is conducted almost entirely in private between the prosecutor and defense attorney. Plea bargaining is by its very nature a shrouded experience; plea negotiations occur off-the-record, away from the judge, public and most times, even the defendant. While members of the public may serve on juries or watch real jury trials from start to finish in person or on Court TV, they have no such opportunity to witness plea bargaining. Even citizens who are committed to engaging in the court system – for instance, those participating in Court Watching programs, will only get to see a sliver of the negotiations. More importantly, individuals who have been defendants in criminal cases may not have a good sense of how their own plea negotiations went, given that the process is so lawyer-driven. For this reason, compared to other legal practices, plea bargaining narratives found in legal procedurals are even more influential on public perceptions.

There is very little information about how the public perceives the plea system, which now encompasses the entirety of the criminal justice system. While podcasts, like Season 3 of Serial, or documentaries, like Making a Murderer, provide some window into the criminal system, realistic depictions of plea bargaining in mass media are rare. But such representations may be a first step in helping the public understand the realities of this vast and often problematic system.