48 Pages Posted: 18 Sep 2014 Last revised: 17 Jan 2016
Date Written: December 6, 15
Jury trials are rare. Almost all criminal cases are resolved by guilty plea, and almost all guilty pleas are secured by prosecutorial offers of leniency. Our system of criminal procedure was developed around the norm of trials, and the shift to resolution-by-plea represents a massive change to the structure of the system.
The dominance of plea bargaining can best be explained by reference to a constitutionalized criminal procedure that renders formal adjudication too costly to provide in most cases. Plea bargaining dramatically enhances the efficiency of our system, serving as a safety valve against costly trials. The transformation of an adjudicatory system of criminal justice to a confessional one, however, generates severe costs for the legal system as a whole.
This article proposes trial bargaining as a new safety valve to counteract the negative consequences plea bargaining. Through the mechanism of waiver – the very tool that makes plea bargaining possible – trial bargaining allows the defendant to waive limited trial rights in exchange for limited leniency. As such, it promises to reinvigorate the jury trial, mitigate the costs of an excessive reliance on plea bargains, and allow a more vibrant and experimental approach to criminal justice than has been realized under our constitutionalized system.
Keywords: Trial Bargaining, Plea Bargaining, Waiver, Jury Trials, Wrongful Convictions
Suggested Citation: Suggested Citation
Gilchrist, Gregory M., Trial Bargaining (December 6, 15). Iowa Law Review, Vol. 101, 2016; University of Toledo Legal Studies Research Paper No. 2014-20. Available at SSRN: https://ssrn.com/abstract=2497144 or http://dx.doi.org/10.2139/ssrn.2497144
By Orin Kerr