Bargaining for More Trials
The Champion (National Association of Criminal Defense Lawyers), January-February 2016
10 Pages Posted: 27 Feb 2016
Date Written: July 1, 2015
The criminal justice system is built around the jury trial, but almost all defendants plead guilty. This essay suggests that defense lawyers should employ the mechanism that killed jury trials – bargaining – to revitalize the jury trial. Specifically, lawyers ought to negotiate limited trial waivers in exchange for limited leniency. Trial bargaining offers a tool that will mitigate the harms of plea bargaining and generate more, and sometimes better, options for clients. Why would a prosecutor want to bargain for a trial? What trial rights may defense counsel agree to waive? The essay offers three examples of trial bargains as well as a sample agreement the parties can present to the court.
This short essay appeared in The Champion, the monthly magazine for the National Association of Criminal Defense Lawyers. It builds on the ideas more fully developed in Trial Bargaining, 101 Iowa L. Rev. 609 (2016).
Keywords: Juries, trials, plea bargaining, federal courts, defense counsel, prosecutors
Suggested Citation: Suggested Citation