CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, October 20, 2015

McKoski on Bargaining Away Trial Rights

Ray McKoski has posted Betting Against the (Big) House: Bargaining Away Criminal Trial Rights (100 Iowa Law Review Bulletin 125 (2015)) on SSRN. Here is the 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?

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