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September 15, 2014

"Unbundling Criminal Trial Rights"

The title of this post is the title of this intriguing short paper by John Rappaport that I just saw on SSRN. Here is the abstract:

The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong.  Defendants can, and sometimes do, “unbundle” their jury-trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure.

This Article explores what happens if, once and for all, we eschew the all-or-nothing framework and actually encourage these “unbundled bargains.”  The parties could then tailor court procedures by agreement.  Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury.  Or the parties could agree to submit a case to private arbitration.  Would such a world be better or worse than the one we have now?  This Article takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining plausibly outweigh the costs.

September 15, 2014 at 02:14 PM | Permalink


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Part of the difficulty is the ability to unbundle trial rights are also held exclusively by the prosecution (at least as a matter of Constitutional law). The defense has no right to waive trial by jury, to enter a conditional guilty plea, or have the prosecution accept their stiuplation of the evidence. The only one I've seen routinely agreed to is waiving confrontation rights. Even then, it's almost done unilaterally without gain when there's unlikely to be any loss.

So I think the article makes great points, but there's a general reluctance to bargain individual rights from Prosecutors. Maybe they'd do well to read the article, I don't know.

Posted by: Erik M | Sep 16, 2014 6:51:47 AM

The heading "Unbungling Criminal Trial Rights" may be more appropriate when it comes to dealing with prosecutors.

Posted by: albeed | Sep 18, 2014 5:22:28 PM

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