Hostname: page-component-669899f699-swprf Total loading time: 0 Render date: 2025-05-01T14:14:59.798Z Has data issue: false hasContentIssue false
  • English
  • Français

Narratives and Narrative Structure in Plea Bargaining

Published online by Cambridge University Press:  01 July 2024

Douglas W. Maynard
Get access Rights & Permissions [Opens in a new window]

Abstract

During plea negotiations, attorneys use stories to tell what happened when a defendant was charged with an offense. This paper is concerned with how attorneys tell stories, and includes a consideration of narrative structure and how components of this structure are used in plea negotiations. Components of narrative include: (1) a story entry device; (2) the story itself which may contain a backgrounding segment, action report, and reaction report; and (3) a defense segment in which an attorney denies or explains the defendant's behavior. Systematic employment of these components results in four patterns of negotiations: (1) routine processing, (2) assessing character; (3) disputing facts, and (4) arguing subjectivity. Narrative structure is part of the interaction order of negotiations and is a mechanism through which participants assemble features of a case and aspects of the courtroom setting. Narrators reflexively become part of the stories they tell, which provides a structural motivation for them to perform well during negotiations.

Type
Research Article
Information
Law & Society Review , Volume 22 , Issue 3 , 1988 , pp. 449 - 481
Copyright
Copyright © 1988 by The Law and Society Association

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Article purchase

Temporarily unavailable

Footnotes

An earlier version of this paper was presented at the National Science Foundation Conference on Language in the Judicial Process, Georgetown University, Washington, D.C., July 26–28, 1985. I would like to thank Steve Clayman, Robert Kidder, Judith Levi, and Anne Walker for their helpful comments.

References

References

AGAR, Michael (1980) “Stories, Background Knowledge, and Themes: Problems in the Analysis of Life History Narrative,” 7 American Ethnologist 223.Google Scholar
AGAR, Michael, and Jerry R., HOBBS (1982) “Interpreting Discourse: Coherence and the Analysis of Ethnographic Interviews,” 5 Discourse Processes 1.CrossRefGoogle Scholar
ALSCHULER, Albert (1975) “The Defense Attorney's Role in Plea Bargaining,” 84 Yale Law Journal 1179.Google Scholar
ATKINSON, J. Maxwell, and Paul, DREW (1979) Order in Court. New Jersey: Humanities Press.CrossRefGoogle Scholar
BAUMAN, Richard (1977) “Verbal Art as Performance,” in Bauman, R. (ed.), Verbal Art as Performance. Rowley, MA: Newbury House.Google Scholar
BENNETT, W. Lance, and Martha S., FELDMAN (1981) Reconstructing Reality in the Courtroom. New Brunswick: Rutgers University Press.Google Scholar
BUCKLE, Suzann R. Thomas, and Leonard G., BUCKLE (1977) Bargaining for Justice: Case Disposition and Reform in the Criminal Courts. New York: Praeger.Google Scholar
COULTER, Jeff (1979) The Social Construction of Mind: Studies in Ethnomethodology and Linguistic Philosophy. Totowa, NJ: Rowman and Littlefield.Google Scholar
DANET, Brenda (1980) “Language in the Legal Process,” 14 Law & Society Review 445.Google Scholar
EMERSON, Robert (1983) “Holistic Effects in Social Control Decision-Making,” 17 Law & Society Review 425.Google Scholar
EMERSON, Robert (1969) Judging Delinquents: Context and Process in Juvenile Court. Chicago: Aldine.Google Scholar
ERLANGER, Howard S., Elizabeth, CHAMBLISS, and Marygold S., MELLI (1987) “Participation and Flexibility in Informal Processes: Cautions from the Divorce Context,” 21 Law & Society Review 585.Google Scholar
FEELEY, Malcolm (1979) The Process Is the Punishment. New York: Russell Sage Foundation.Google Scholar
GOFFMAN, Erving (1983) “The Interaction Order,” 48 American Sociological Review 1.Google Scholar
GOODWIN, Charles (1984) “Notes on Story Structure and the Organization of Participation,” in Atkinson, J. M. and Heritage, J. (eds.), Structures of Social Action. Cambridge: Cambridge University Press.Google Scholar
GOODWIN, Marjorie H. (1982) “‘Instigating:‘ Storytelling as Social Process,” 9 American Ethnologist 799.Google Scholar
HERITAGE, John (1984) Garfinkel and Ethnomethodology. Cambridge: Polity Press.Google Scholar
HERITAGE, John C., and D. R., WATSON (1979) “Formulations as Conversational Objects,” in G. PSATHAS (ed), Everyday Language: Studies in Ethnomethodology, New York: Irvington.Google Scholar
JEFFERSON, Gail (1978) “Sequential-Aspects of Storytelling in Conversation,” in Schenkein, J. (ed.), Studies in the Organization of Conversational Interaction. New York: Academic Press.Google Scholar
LABOV, William (1982) “Speech Actions and Reactions in Personal Narrative,” in Tannen, D. (ed.), Analyzing Discourse: Text and Talk. Washington, DC: Georgetown University Press.Google Scholar
Tannen, D. (1972) Language in the Inner City. Philadelphia: University of Pennsylvania Press.Google Scholar
LABOV, William, and David, FANSHEL (1977) Therapeutic Discourse Psychotherapy as Conversation. New York: Academic Press.Google Scholar
LABOV, William, and Joshua, WALETZKY (1967) “Narrative Analysis,” in Helm, J. (ed.), Proceedings of the American Ethnological Society: Essays on the Verbal and Visual Arts. Seattle: University of Washington Press.Google Scholar
LANDAU, Misia (1984) “Human Evolution as Narrative,” 72 American Scientist 262.Google Scholar
LEVI, Judith N. (1985) “Language and the Law in the U.S.A.: A Guided Tour” Presented at the National Science Foundation conference on Language in the Judicial Process, Georgetown University Washington, DC (July 26-28).Google Scholar
MATHER, Lynn M. (1979) Plea Bargaining or Trial? The Process of Criminal Case Disposition. Lexington, MA: Lexington Books.Google Scholar
MAYNARD, Douglas W. (1984) Inside Plea Bargaining: The Language of Negotiation. New York: Plenum Press.CrossRefGoogle Scholar
MEEHAN, Albert J. (1986) “Record-Keeping Practices in the Policing of Juveniles,” 15 Urban Life 70.Google Scholar
MISHLER, ' Elliot (1986) Research Interviewing: Context and Narrative. Cambridge: Harvard University Press.Google Scholar
MNOOKIN, Robert H., and Lewis, KORNHAUSER (1979) “Bargaining in the Shadow of the Law: The Case of Divorce,” 88 Yale Law Journal 950.Google Scholar
NEWMAN, Donald J. (1966) Conviction: The Determination of Guilt or Innocence Without Trial. Boston: Little, Brown.Google Scholar
O'BARR, William M. (1982) Linguistic Evidence: Language, Power, and Strategy in the Courtroom. New York: Academic Press.Google Scholar
O'BARR, William M., and John, CONLEY (1985) “Litigant Satisfaction Versus Legal Adequacy in Small Claims Court Narratives,” 19 Law & Society Review 661.Google Scholar
POLYANI, Livia (1979) “So What's the Point?” 25 Semiotica 208.Google Scholar
POMERANTZ, Anita (1984) “Agreeing and Disagreeing with Assessments: Some Features of Preferred/Dispreferred Turn Shapes,” in Atkinson, J. M. and Heritage, J. (eds.), Structures of Social Action. Cambridge: Cambridge University Press.Google Scholar
POMERANTZ, Anita, and J. Maxwell, ATKINSON (1984) “Ethnomethodology, Conversation Analysis, and the Study of Courtroom Interaction,” in Muller, D. J., Blackam, D. E., and Chapman, A. J. (eds.), Psychology and Law. New York: John Wiley.Google Scholar
RAWLS, Ann (1987) “The Interaction Order Sui Generis: Goffman's Contribution to Social Theory,” 5 Sociological Theory 136.Google Scholar
ROBINSON, John A. (1981) “Personal Narratives Reconsidered,” 94 Journal of American Folklore 58.Google Scholar
ROSETT, Arthur, and Donald R., CRESSEY (1976) Justice by Consent: Plea Bargains in the American Courthouse. Philadelphia: J. B. Lippincott.Google Scholar
RYAVE, Alan L. (1978) “On the Achievement of a Series of Stories,” in Schenkein, J. (ed.), Studies in the Organization of Conversational Interaction. New York: Academic Press.Google Scholar
SACKS, Harvey (1984) “On Doing ‘Being Ordinary,‘” in Atkinson, J. M. and Heritage, J. (eds.), Structures of Social Action. Cambridge: Cambridge University Press.Google Scholar
SACKS, Harvey (1978) “Some Technical Considerations of a Dirty Joke,” in Schenkein, J. (ed.), Studies in the Organization of Conversational Interaction. New York: Academic Press.Google Scholar
SACKS, Harvey (1974) “An Analysis of the Course of a Joke's Telling in Conversation,” in Bauman, R. and Sherzer, J. (eds.), Explorations in the Ethnography of Speaking. Cambridge: Cambridge University Press.Google Scholar
SACKS, Harvey (1972) “Notes on Police Assessment of Moral Character,” in Sudnow, D. (ed.), Studies in Social Interaction. New York: The Free Press.Google Scholar
SACKS, Harvey (1964-1972) “Lecture Notes”. Unpublished. University of California at Irvine.Google Scholar
SACKS, Harvey, SCHEGLOFF, Emanuel A., and Gail, JEFFERSON (1974) “A Simplest Systematics for the Organization of Turn-Taking for Conversation,” 50 Language 696.Google Scholar
SCHEGLOFF, Emanuel A. (1987) “Between Macro and Micro: Contexts and Other Connections,” in Alexander, J., Giesen, B., Munch, R., and Smelser, N. J. (eds.), The Micro-Macro Link. Berkeley: University of California Press.Google Scholar
SCHEGLOFF, Emmanuel, and Harvey, SACKS, (1974) “Opening up Closings,” in Turner, R. (ed.), Ethnomethodology. London: Penguin.Google Scholar
SCHELLING, Thomas C. (1963) The Strategy of Conflict. Cambridge: Harvard University Press.Google Scholar
SCHUTZ, Alfred (1973) Collected Papers, Vol. 1, The Problem of Social Reality. The Hague: Martinus Nijhoff.Google Scholar
SCOTT, Marvin B., and Stanford M., LYMAN (1968) “Accounts,” 33 American Sociological Review 46.Google Scholar
SHARROCK, Wesley W., and Roy, TURNER (1980) “Observation, Esoteric Knowledge, and Automobiles,” 3 Human Studies 19.Google Scholar
SMITH, Barbara Herrnstein (1980) “Narrative Versions, Narrative Theories,” 7 Critical Inquiry 213.Google Scholar
SMITH, Dorothy (1974) “The Social Construction of Documentary Reality,” 4 Sociological Inquiry 257.Google Scholar
SPENCER, J. William (1984) “Conducting Presentencing Investigations: From Discourse to Textual Summaries,” 13 Urban Life 207.CrossRefGoogle Scholar
SUDNOW, David (1965) “Normal Crimes: Sociological Features of the Penal Code in a Public Defender's Office,” 12 Social Problems 255.Google Scholar
VAN DIJK, Teun A. (1975) “Action, Action Description, and Narrative,” 6 New Literary History 273.CrossRefGoogle Scholar
WEST, Candace, and Don H., ZIMMERMAN (1985) “Gender, Language, and Discourse,” in van Dijk, T. A. (ed.), Handbook of Discourse Analysis, Vol. 4, Discourse Analysis in Society. London: Academic Press.Google Scholar
WOLFSON, Nessa (1982) CHP: The Conversational Historical Present in American English Narrative. Dordrecht, The Netherlands: Foris Publications.CrossRefGoogle Scholar
ZIMMERMAN, Don H. (1974) “Fact as a Practical Accomplishment,” in Turner, R. (ed.), Ethnomethodology. London: Penguin.Google Scholar

Statute Cited

Cal. Penal Code §§ 146, 415 (Deering, 1977).Google Scholar