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November 11, 2013

By: Joel Cohen

It will come as no surprise that lawyers engage in highball/lowball negotiating tactics to get the best possible result for their clients. And, not surprisingly, even in negotiating guilty pleas and sentences.

Now, though, two judges of the Second Circuit have actually discussed opposing sides of the issue in the context of cognition science --- i.e., whether prosecutors deliberately "highball" sentencing recommendations in order to influence the sentences judges actually impose. In the words of cognitive scientists and behavioral economist, it's called "anchoring." For Circuit Judge Calabresi, anchoring actually involves judgments as to a house's worth, someone's age, how many cans of soup to buy, and actually, pertinent here, – what sentence a defendant deserves.

Can the use of the phenomenon, especially by prosecutors, be abusive in the criminal process?

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