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In the 9th episode of series 15 of "Law and Order: SVU", a serial rapist offers to plead guilty to a rape which he did not commit, while refusing to plead guilty to a series of rapes which he actually did commit (the reasons for this are complex and irrelevant to the question).

The prosecutor and police seriously consider accepting his offer, even though they know he didn't commit the crime he wants to confess to, because they don't think they can prove the crimes he actually did commit. This doesn't sound to me like something which would be legal. Could a prosecutor really agree to a plea bargain deal which would involve the defendant confessing to something which the prosecutor knows they didn't do?

I know it's TV, but "Law and Order" has a reputation for being realistic TV.

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  • What do you mean by "could"? Able, legal, ethical, etc?
    – sharur
    Nov 24, 2020 at 1:23
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    @sharur I think an answer is suggested by the fact that the question was posted to Law.SE rather than TheoreticallyPossibleOutcomes.SE.
    – bdb484
    Nov 24, 2020 at 4:21

2 Answers 2

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Such things are in fact legal in some US jurisdictions, as part of plea bargains. In fact such pleas are not uncommon. More usual is the case where a person pleads guilty to a lesser crime, so as to qualify for a lower sentence, when all involved know that the lesser crime was not committed by anyone. It is simply a device to get a compromise sentence and avoid a trial.

In some jurisdictions the Judge, in the course of accepting a guilty plea, requires that the accused admit specific facts that form a minimal legal basis for conviction of the crime pled to. In others no such admission is made. But even where such an admission is made, the truth of such an admission is not usually checked. The Judge will generally make sure that the accused understands the effect of a guilty plea, the rights given up by such a plea, and the possible range of sentences that will result. If the Judge believes that the plea constitutes a miscarriage of justice, for example that a totally innocent person is yielding to improper pressure from the prosecutor, the Judge can refuse the plea, but this is very rare in practice.

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    For example, in a situation pertinent to Law and Order SVU, it isn't uncommon for a defendant to plea guilty to a crime of equivalent seriousness that doesn't carry a sex offender designation (e.g. aggravated assault) in lieu of one that does (e.g. rape).
    – ohwilleke
    Nov 24, 2020 at 1:48
  • But doesn't this violate the basic principle that prosecutors should only prosecute where they know that the person is guilty? I guess I'm just amazed this is legal.
    – Statsanalyst
    Nov 24, 2020 at 21:17
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    @Statsanalyst at least in the US, there really is no such principle, or not in practice. Prosecutors will prosecute those who they think are guilty. But they feel free to prosecute for a different crime mof equal or lesser severity if that is more convenient for the system. The argument is that effective justice is in fact done: the accused is guilty of something, and is convicted of something no more serious. One may disagree with this practice, but it does happen routinely.
    – David Siegel
    Nov 24, 2020 at 22:00
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Notionally, guilty pleas should only be accepted for crimes which the defendant actually committed, and in fact knowingly doing otherwise is a crime.

Realistically, the prosecutor rarely cares about anything other than getting a win, and the rare cases involve pity for the victim/family, where the wrong person being convicted might make them feel better as long as they believe it is the right person.

Also in the real world prosecutors make up evidence and send people to jail for extended periods of time and not much happens: http://www.allgov.com/news/controversies/prosecutor-gets-10-days-in-jail-to-make-up-for-sending-innocent-man-to-prison-for-25-years-131110?news=851619

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