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Notable Recent Publications - December, 2022

Notable Recent Publications features the latest empirical research and data related to indigent defense. Should you have suggestions, ideas for work that should be included, or trouble accessing any of the articles featured, please write to


Amy Clarke and Lucy Welsh ‘F**k this game ... I’m off’: financial and emotional factors in declining legal representation in miscarriage of justice cases. Journal of Law and Society.

[W]e use data from interviews with 45 criminal defence lawyers to examine the reasons behind a decline in publicly funded representation in applications to the Criminal Cases Review Commission (CCRC)... Our analysis finds that financial factors [are] compounded by....a sense of insecurity, low levels of satisfaction, and a perceived lack of recognition and appreciation, symbolized by low levels of remuneration and exacerbated by poor relationships with external parties. Emotional factors thus combine with financial factors to reduce the supply of publicly funded advice and deter junior lawyers from specializing in this niche area of practice.

Melanie B. Fessinger and Margaret Bull Kovera, From whose perspective? Differences between actors and observers in determining the voluntariness of guilty pleas. Law and Human Behavior, 46(5), 353–371.

...Defendants and judges both play a role in determining whether guilty pleas are voluntary. The actor–observer bias suggests that defendants and judges perceive the decision-making process differently given the nature of their roles.... In both studies, actors rated pleas as more voluntary than did observers. Participants rated guilty pleas as more voluntary when the defendant was guilty compared with innocent. Participants also rated pleas as more voluntary when the defendant had a voice in the decision-making process compared with when the defendant did not have a voice, but the difference was bigger for observers than for actors... Individuals who play a role in the plea decision-making process should ensure that defendants have a proper opportunity to express their opinions and preferences about the decision. 

Rafael Godoi, The Helpless Defense: Notes on the Role of Brazilian Public Defenders in Sentence Enforcement Proceedings. Crime, Law & Social Change.

The article exposes and analyzes the potentialities and limits of the activities of public defenders who work in Brazilian criminal sentence enforcement courts... [T]he article explores the role of public defenders in some key moments of a sentence enforcement process: in the elaboration of a request of benefit; in the inspection of procedural records; in the monitoring of the processing time of the court; and, finally, in the defense at administrative processes of disciplinary infractions.... On the one hand, their intervention in sentence enforcement proceedings appears to be absolutely essential, triggering the rights and benefits that make the prison population flow through the prisons in Brazil. On the other hand, public defenders appear as agents that are absolutely powerless, if not entirely useless, because they are incapable of making the justice system observe, in due course, the most ordinary subjective rights of a convict.

Chae M. Jaynes, Jacqueline G. Lee & Heath N. Franks,  Evaluating Racial and Ethnic Invariance Among the Correlates of Guilty Pleas: A Focus on the Effect of Court Legitimacy, Attorney Type, Satisfaction, and Plea-Offer Evaluation. Journal of Research in Crime and Delinquency.

[This research explores] differences in White, Black, and Hispanic defendants’ willingness to accept a guilty plea (WTAP).... Though there are not significant direct effects of race or ethnicity on initial WTAP, there are racial/ethnic differences in theoretical antecedents of WTAP such as perceived probability of conviction, court legitimacy, and attorney type.... Racial/ethnic differences in rates of plea acceptance are likely due to cumulative racial/ethnic differences in antecedents of WTAP, differences in the effect of attorney evaluation by race/ethnicity, and/or factors that were not directly examined in this study such as variation in plea offers...

Allison D. Redlich, Kirsten Domagalski, Skye A. Woestehoff, Amy Dezember, and Jodi A. Quas, Guilty Plea Hearings in Juvenile and Criminal Court. Law & Human Behavior.

...In this study, we had the unique opportunity to systematically observe plea hearings in juvenile and criminal court.... On average, juvenile plea hearings lasted about 7 min and criminal plea hearings lasted 13 min. Prosecutors rarely reviewed evidence against the defendants in the juvenile courts, and in one juvenile court, judges paid virtually no attention to plea validity. In the other two courts, certain waived rights (e.g., to trial, to silence) were reviewed consistently. Depending on the court, hearing length and plea validity elements addressed varied by defendants’ prehearing custody status and the pled-to charge severity... These findings provide novel insight into how components necessary for plea admissibility—knowingness, voluntariness, and intelligence—are discussed with defendants and, in doing so, raise concerns about the degree to which plea validity is actively assessed in plea hearings. Plea hearings are formal, minutes-long events in which defendant engagement is low. 

Suzanne St. George, Emily Denne, and Stacia N. Stolzenberg, Blaming Children: How Rape Myths Manifest in Defense Attorneys' Questions to Children Testifying About Child Sexual Abuse. 37/17-18, Journal of Interpersonal Violence.

[D]efense attorneys in child sexual abuse (CSA) cases may be motivated to highlight rape myths in CSA trials. In the current study, we conducted a content analysis of the cross-examinations of 122 children, aged 6 to 17, alleging CSA to determine if and how defense attorneys question children about rape myths.... A total of 10% of all defense attorneys’ lines of questioning referenced a rape myth, and attorneys asked 77% of children at least one rape myth line of questioning. Whether or not attorneys asked about different myths and the content of these questions varied by children’s age. Our findings indicate that defense attorneys use rape myths strategically to undermine children’s credibility in CSA trials, but they adapt (adult) rape myths in ways that are plausible in the CSA context. Policies formed to prevent the prejudicial impact of rape myths at sexual assault trials involving adults (e.g., rape shield laws) may not adequately prevent their impact in CSA trials. Prosecutors, therefore, should address rape myths at CSA trials.

Encyclopedia entry

Andrew Davies and Shelby Peck, "Access to Legal Representation," in Harkness et al. (eds.) Encyclopedia of Rural Crime, pp. 255-257.

[From the text:] "In 2013, the United Nations endorsed the notion that states should consider the provision of legal representation for criminal defendants to be their duty and responsibility. It singled out rural areas as a special concern. States, though, frequently provide only limited funding for legal representation to criminal defendants. This can have particularly serious effects in rural places where providing access to legal representation is often costly and complicated. Rural lawyers frequently have to travel great distances to meet their clients. Rapidly linking an attorney to a defendant may simply be impossible where terrain or weather are challenging."

Conference paper

Bernardo Oliveira Buta and Luiz Akutsu, The long-term balance between autonomy and performance in the public sector. ENAJUS 2022.

...This study aims to test the long-term impact of autonomy on performance of the Brazilian Federal Public Defender’s Office – PDO.... [T]here was an important increase in the budget available for the PDO from 2014 onwards, which was the first year that the PDO was able to negotiate its budget proposal directly with Congress.... However, the increase in the PDO’s output did not occur in the same proportion as the increase in the input. There was even a drop in the level of output in the period after the granting of autonomy... Similarly, the cost of legal assistance also increased after the granting of autonomy, indicating a reduction in the efficiency of the PDO.


Jennie Odom, CSI Effect: Exploring Impact Among Mississippi Lawyers. Honors Thesis, University of Southern Mississippi.

[T]his project worked to explore the perspectives of both defense attorneys and prosecutors...regarding the CSI Effect.... While both groups believed in the existence of the CSI Effect, defense attorneys often had differing viewpoints from each other while prosecutorial responses were internally consistent. Both groups emphasized the need for increased funding of state crime laboratories and the importance of voir dire questions during jury selection to mitigate the CSI Effect...

Benjamin Scuderi, Essays in Labor Economics. Ph.D. dissertation, Economics, Graduate Division of the University of California, Berkeley.

[From the abstract:] "The third chapter...quantifies the extent to which variation in case outcomes across indigent criminal defendants can be attributed to variation in the quality of their assigned counsel.... For defendants in felony cases, a one-standard-deviation decrease in attorney quality is associated with a 5.6 percentage-point increase in the probability of incarceration. These findings suggest that outcomes in criminal cases are driven in a nontrivial way by the luck of the draw, undermining the extent to which the criminal legal system can achieve traditional notions of fairness and efficiency. Using estimates of attorney quality, I evaluate the effects of a program that allowed defendants to choose attorneys. Perhaps because attorney quality is difficult to predict using observable characteristics, the program had essentially no effects on aggregate case outcomes, although it did significantly shift the burden of caseloads across attorneys."