Pre-trial withdrawals: Trial,bargain,or pseudo-bargain?

Abstract

An analysis of the correlates of pre-trial withdrawals in Melbourne magistrates' court cases suggests that withdrawals are largely a reponse to plea and to whether defendants were legally represented. Where defendants were willing to plead guilty to remaining charges, withdrawals appear to have been more likely where the prosecution case was weak. Although pre-trial withdrawals appear to be the outcome of a bargaining process, the value of withdrawals appears to be limited, especially in their impact on sentence.

In many US jurisdictions, cases are frequently disposed of by a decision by the prosecutor to withdraw the charges against the defendant. In other cases, some charges are withdrawn and others reduced. In some cases withdrawals reflect no more than an assessment by the prosecutor that the case should not proceed. The complainant may want the charges withdrawn. Key witnesses may be unavailable. However, withdrawals are frequently a response to some type of negotiation. Sometimes the negotiation may involve a process analogous to trial and the defence may succeed in persuading the prosecutor that the prosecution case is so weak that it would be a waste of time to take it to trial. Often the bargain involves an agreement whereby the defendant pleads guilty to some charges in exchange for the withdrawal of others. In some cases the bargain may be a genuine one, but in others, bargaining may represent “pseudo-bargaining”: charges may be withdrawn, but the sentence the defendant receives may in fact be identical to what he would have received had no charges been withdrawn.

In Australia, charge withdrawal is far less widespread than is the case in many American jurisdictions, but it nonetheless takes place. This study represents an examination of the correlates of charge withdrawal in six Melbourne magistrates' courts.

For methodological reason it has not been possible to examine the determinants of charge withdrawals in cases where all charges were withdrawn. However, these are the exceptions. Charge withdrawal usually involves withdrawal of only some of the charges which make up magistrates' court cases, and it is possible to explore the correlates of withdrawals in these cases.

I shall be arguing that charge withdrawal bears a rather complex relationship to the strength of the prosecution case, but is strongly related to plea and representation and in such a way as to suggest that withdrawals are the result of a bargaining process. However, the benefits of pre-trial withdrawals appear to be largely illusory. Defendants who fail to benefit from pre-trial withdrawals sometimes benefit from post-conviction withdrawals. Sentence appears to be unaffected by whether or not charges have been withdrawn.