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October 7, 2014

"Trial Bargaining"

The title of this post is the title of this notable new article by Gregory Gilchrist now available via SSRN. Here is the abstract:

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.

October 7, 2014 at 10:26 AM | Permalink


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I agree that trial versus plea shouldn't be an all-or-nothing proposition. Some years ago I made a similar proposal for negotiated partial trials, based on my study of the french criminal adjudication system which, at that time, didn't have anything at all like our guilty plea procedure except for minor crimes; unless all charges were dismissed a trial was held in every case, but some trials were essentially uncontested, some were fully contested on all issues [like almost all U.S. criminal trials], and some were partial trials focusing on the contested issues (more like U.S. civil trials). Like Prof. Gilchrist, I suggested that such partial trials encourage trial of genuinely contested issues, allow the trier of fact to focus on those issues, and reduce the degrees of coercion and sentencing disparity by encouraging the exchange of modest sentence concessions for modest degrees of defendant cooperation and trial shortening. See 78 California Law Review 539, at 639, 641-44. (yes, I'm a law professor; but I've always taught at least one clinical course [state and federal prosecution clinics for over 25 years, a federal defense clinic for the past 10)

Posted by: Richard Frase | Oct 17, 2014 3:37:00 PM

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