Standards of Legitimacy in Criminal Negotiations
Oliver, Wesley MacNeil
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Scholarship on negotiation theory and practice is rich and well-developed. Almost no work has been done, however, to translate to the criminal context the lessons learned about negotiation from extensive empirical study using the disciplines of economics, game theory, and psychology. This Article suggests that defense lawyers in criminal negotiations can employ tools frequently useful to negotiators in other arenas: neutral criteria as a standard of legitimacy. Judges sometimes exercise a type of discretion analogous to prosecutorial discretion. When they do so, they offer an independent, reasoned, and publicly available assessment of the factors that a prosecutor ought to consider in deciding whether to grant leniency. In negotiations, defense lawyers can use these guidelines offered by judges as a soft limitation on the largely unchecked power of prosecutors. Judges have been reluctant, however, to exercise the power clearly assigned to them, and defense lawyers have been slow to recognize the value of the guidance that judges have provided.