Betting Against the (Big) House: Bargaining Away Criminal Trial Rights

9 Pages Posted: 10 Oct 2015

See all articles by Ray McKoski

Ray McKoski

University of Illinois Chicago School of Law

Date Written: October 8, 2015

Abstract

Professor Gregory M. Gilchrist is the leading proponent of a new method for resolving criminal cases that he labels, “trial bargaining.” Under this scheme, defendants could trade away some of their trial rights in exchange for a charging or sentencing concession from the prosecution. For example, a prosecutor might agree to reduce a charge of armed robbery to simple robbery if the accused agreed to a three-person jury.

This short response to Professor Gilchrist’s proposal identifies three issues that must be addressed before experimentation with trial bargaining can begin. The first issue is whether the Supreme Court would uphold the constitutionality of trial bargaining. Second, will the sheer number of potential bargaining chips deprive the process of any semblance of uniformity and consistency? Finally, are there any fundamental safeguards that a criminal defendant should be prohibited from trading away?

Keywords: trial bargaining, plea bargaining, criminal procedure

JEL Classification: K14

Suggested Citation

McKoski, Ray, Betting Against the (Big) House: Bargaining Away Criminal Trial Rights (October 8, 2015). 100 Iowa Law Review Bulletin 125 (2015), Available at SSRN: https://ssrn.com/abstract=2671327

Ray McKoski (Contact Author)

University of Illinois Chicago School of Law ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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