The State never says, “either take this deal or we’ll dismiss.” When the accused makes the choice not to plead guilty, he doesn’t know or control whether the State will back down. The accused has to apply the odds that he knows to the imperfect information that he has.

Also, each person’s decision affects the market. The more people don’t plead guilty, the more often the State will have to back down. Each person who tells the State “no thanks” improves the odds not only for everyone else but also for himself.

But there is another way of looking at the numbers which is probably more helpful and definitely more accurate.

1. Of the total number of defendants arrested in your sample, 82.6% were convicted.
2. 81.6% of this number were convicted via guilty plea, meaning, essentially, that both the State and the Defendant agreed that the evidence was sufficient to support guilt.
3. Of the remaining 17.4%, 16.6% had their cases dismissed, meaning, essentially, that both the State and the Defendant agreed that the evidence was insufficient to support guilt.
4. That leaves 1.8% of the sample. In these cases, the State and the Defendant could not reach an agreement, and some kind of contested hearing resulted. Out of THIS small number (67) 58% were convicted. Not too far from coin-toss odds and actually a bit better for the State than I expected. While the stakes are not as high in misdemeanor court as they are in felony, these type of odds might be enough to give a reasonable client pause before going to trial.

This is not to say your point isn’t valid: Resistance often – though certainly not always – yields better results than a negotiated surrender. But let’s not exaggerate. For cases where neither side backs down, clients should be reasonably informed that their chances of prevailing are NOT 94%, but more like 42% or so. Again, possibly enough to make some of them think twice, especially if a trial fee is involved.

Where do you get this number?