The Language of Negotiation

  • Douglas W. Maynard


Plea bargaining, the major means by which cases are funneled through the criminal justice process, is not a new practice. There is evidence of its presence in the United States before the Civil War, and it became a predominant means of administering justice shortly thereafter. What is new is the amount of attention it has received recently. Plea bargaining was only sporadically discussed in the early decades of this century, though in the 1920s various states surveyed their criminal courts and discovered just how dominant plea bargaining had become. It was not until the 1960s, however, that plea bargaining emerged as a national issue, and numerous professions and disciplines, including law, political science, and sociology, began to focus on the practice. In the 1970s, there was a virtual explosion of published material, as over two-thirds of the extant books, articles, and studies concerning plea bargaining were written during the decade.1 Despite all this attention, and although we have learned much by the use of surveys, interviews, and firsthand observations, the picture we have of courtroom negotiation is largely an outside view.


Criminal Court Conversational Analysis Lower Court Mock Juror Plea Bargaining 
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  1. 1.
    This figure was obtained by a count of articles in an extensive bibliography of plea bargaining compiled by Matheny (1979). The percentage also tallies with one cited by Miller, McDonald, and Cramer (1978: iii), although the two-thirds figure pertains to publications appearing in the decade prior to their study (1968–1978).Google Scholar
  2. 2.
    The figures cited in this paragraph vary from study to study (e.g., Feeley, 1979b; Mather, 1974; Neubauer, 1974; Rosett and Cressey, 1976), and depend upon jurisdictional reporting practices and whether felonies only, felonies and misdemeanors, or misdemeanors only are included in the count.Google Scholar
  3. 3.
    Many of these studies (and related ones) are reviewed, and their findings summarized, in Danet (1980b: 519–541).Google Scholar
  4. 4.
    Maynard (1983) reviews and critiques three books on trial discourse that concern speech styles (O’Barr, 1982), storytelling (Bennett and Feldman, 1981), and accusation sequences (Atkinson and Drew, 1979).Google Scholar
  5. 5.
    The results of the experiments on “narrative” and “fragmented” style testimony were not uniform and are thus difficult to interpret. For example, subjects rated males who spoke in a narrative style more highly than males who did not, but there were no significant differences in response to females who spoke narratively and females who talked in a fragmented style. Subjects evaluated males’ fragmented style negatively, O’Barr argues, because they figured that it reflected lawyer control over, and disapproval of, the witness’ testimony. On the other hand, if women provided fragmented answers to lawyers’ questions, subjects would expect this to be a female trait and would not view it negatively. This assumption seems reasonable except that it is inconsistent with the results of the previous experiment in which the use of “powerless” speech even by females negatively affected respondents’ ratings.Google Scholar
  6. 6.
    It is not that O’Barr is unaware of this problem. In Chapter 6 of Linguistic Evidence (1982) he discusses the crucial role that context plays in determining how some conversational feature is constituted. Components of style do not exist in isolation from their interactive environments, including “various attempts to control or mitigate or even magnify their significance” (O’Barr, 1982: 110). However, the overriding concern with the effects of style on audience perception necessitates a certain inattention to contextual matters.Google Scholar
  7. 7.
    Technically, the question—answer sequences in the example are “adjacency pairs” (Schegloff and Sacks, 1974: 239). A feature of such units is that the first pair-part selects the form in which a second pair-part is properly delivered, a feature to which the witness is clearly alive.Google Scholar
  8. 8.
    Only one part of one hearing was investigated in the Atkinson and Drew book. This is in part necessitated by the extraordinary attention to detail, but use of other, similar data would have strengthened the analysis.Google Scholar
  9. 9.
    For further general discussion of the issue, see Garfinkel (1967: 277) and Coulter (1979: Chapter 1). With respect to the courts, in particular, see Atkinson and Drew (1979) and Dunstan (1980).Google Scholar
  10. 10.
    The cases from (1), (2), and (3) add up to 58 (instead of the total of 52 mentioned earlier) because six cases were discussed in two locales.Google Scholar
  11. 11.
    The courtroom subculture is discussed in later chapters. See especially Chapter 6.Google Scholar
  12. 12.
    ne researcher has noted: This state of affairs is ironical because statistically misdemeanor courts are the most frequent type of criminal courts and because many people assess the justness of the entire court system by their encounters with its “lowest” division. Preoccupied with the grandeur of the Supreme Court and the notoriety of felony courts, researchers forget the insight of the President’s Commission on Law Enforcement and Administration of Justice [19671 that “most of the cases in the criminal courts consist of what are essentially violations of moral norms or instances of annoying behavior, rather than of serious crimes,” and that “almost half of all arrests are on charges of drunkenness, disorderly conduct, vagrancy, gambling, and minor sex violations. ” (Long, 1974: 173 )Google Scholar
  13. 13.
    This problem in the theoretical literature regarding the courts is examined more thoroughly in Chapter 2.Google Scholar
  14. 14.
    The independence of bargaining practices from their context is given critical attention in Chapter 3.Google Scholar

Copyright information

© Springer Science+Business Media New York 1984

Authors and Affiliations

  • Douglas W. Maynard
    • 1
  1. 1.University of WisconsinMadisonUSA

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