Trial vs. Plea Bargaining
Trial
The oldest and most well-known form of dispute resolution in criminal cases is the jury trial (Kadri, 2005). Certainly, the jury trial is the fundamental dispute resolution mechanism of the American adversarial legal system. In fact, the core principle of the criminal justice system holds that disputes are most effectively resolved when the parties in contention are made responsible for: (1) investigating and gathering their own evidence and (2) presenting their own arguments to a neutral and passive lay decision-maker who decides which party presented the most convincing argument (Kadri, 2005). Furthermore, the entire process is subject to the regulation of an impartial judge. Through the application of procedural and evidence rules, the judge ensures that both parties have an equal opportunity to make their arguments and tell their story while protecting the decision-maker from being unduly influenced by any illegal evidence.
The idea that criminal cases should be resolved by a jury trial was important to the early leaders of the nation. Indeed, by 1787, jury trials were declared an essential and non-derogable right of all citizens (Kadri, 2005). As stated in Article III of the Constitution, “the trial of all crimes, except in the cases of impeachment, shall be by jury.” In 1791, the new right to a jury trial in criminal cases was further explained and expanded under the Sixth Amendment of the Constitution. The Sixth Amendment states, in relevant part, that “all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Lastly, in 1868 with the passage of the Fourteenth Amendment to the Constitution, jury trials were made a requirement of all state criminal case where the potential penalty for the accused included incarceration.
In the early years, trials were a fairly perfunctory two-step process (Kadri, 2005). First, a preliminary hearing was held where the appointed judge would determine whether a full trial was needed. In the preliminary hearing, the prosecutor and defense attorney would make arguments for or against the charge. Moreover, the prosecutor and defense both could call witnesses to speak on their behalf or offer evidence to be considered by the judge. If the judge determined that the evidence indicated sufficient cause that the defendant committed the crime, a full trial was then scheduled. If not, the case would be dismissed. Later the role of the judge in these preliminary hearings was replaced by a panel of local citizens called a grand jury. The purpose of the grand jury was to determine whether one accused of a serious crime should be charged or indicted. In federal criminal cases, the right to a grand jury is guaranteed under the Fifth Amendment. Once the preliminary hearing was concluded the actual trial was held. Trials were, usually, just an expanded retrial of the preliminary hearing but made before a jury. It was quite common for a judge to hear several trials a day.
As a result of developments in both the law and the legal profession including the professionalization of prosecuting and defense attorneys, contemporary trials are quite different from those in the past. Advances in criminal procedure and evidence law, and the reduced role of judges in conducting adversarial proceedings, have made jury trials today extremely formal and time-intensive proceedings (Kadri, 2005). To be sure, modern trials operate under a multitude of complex rules and constraints. Trials today, on average, last a minimum of two days (Kadri, 2005).
Traditionally, there was no more effective means to find the truth and resolve disputes than when two opposing forces (the prosecutor versus the defense attorney) compete to find out what happened and present their arguments through the jury trial (Kadri, 2005). Moreover, many believed that only through jury trials could the values of the community on what justice is be expressed through the verdict of the jury. Alternatively, many complain that the purpose of jury trials is not to seek justice or find the truth but rather to determine which party has the most persuasive argument.
The first activity in a contemporary trial is the pre-trial hearing. The purpose of the hearing is to set the guidelines for that particular trial including the schedule of the trial and the order of witnesses. The pre-trial hearing, most importantly, is for the judge to hear legal argument between the prosecutor and defense attorney on which testimony or evidence may be included or excluded during the trial. Argument is strictly based legal briefs or motions in limine, submitted earlier to the court – without witness testimony (Kadri, 2005).
Once the judge has made his rulings in the pre-trial hearing, the next step is jury selection otherwise known as voir dire or jury selection (Kadri, 2005). Voir dire is the process by which jurors are selected to participate in the trial. During jury selection a randomly selected group of local citizens are asked questions by the prosecutor and the defense counsel prior to trial. Questions range in variety in order to determine: (1) whether a juror has certain biases or pre-conceived ideas that might not allow them to think fairly about the case; or (2) if there is some reason why the juror should not be able to participate in the trial (such as they are related to the victim). Based on the answers of the potential jurors, both the prosecutor and defense attorney are given a limited number of requests that certain citizens be excused by the judge from participating in the trial. Once those requests have been made, the remaining jurors will be sworn in as the juror panel.
After selecting the jury, the actual trial will begin. Both the prosecutor and defense attorney given the opportunity to make opening statements where they summarize the issues of the case and what evidence or testimony they think will be introduced during the trial that will prove those issues. Since jurors know little about the facts of the case at the beginning of trial, the opening statements give them the necessary information they need to help them understand the trial.
Opening statements are followed by the prosecutor’s “case in chief” where he presents evidence and testimony gathered during the investigation to support his argument. Every witness whom the prosecutor calls to give testimony may also be questioned or cross-examined by the defense attorney. After the prosecutor has concluded presenting his case, the defense attorney may present any evidence that he’s discovered in his own investigation. He may also call any witnesses, including the defendant, who he feels will be necessary to prove his argument.
The final activity of a trial is the summation or closing argument. During summation the prosecutor and defense attorney are given the opportunity to make a concluding statement to the jury. Their statements can explain their analysis of the evidence and testimony presented at trial and why that analysis proved that their argument it correct.
The jury is then given time to deliberate or consider the evidence, testimony and arguments that were presented at trial and make a decision or verdict on whether the defendant is guilty or not. Under the rules of criminal procedure, the decision of the jury must be unanimous. If a unanimous decision cannot be reached, the judge will declare the trial is cancelled (mistrial). The results of a mistrial are that either the trial will be reheard at a later date with a new jury panel, or the state will decide to dismiss the case.
Bench Trials: Although the right to a jury trial is guaranteed under the Constitution, a defendant may request a bench trial. In a bench trial, there is no jury and all evidence, arguments and testimony are presented to the judge who acts as both judge and jury. Accordingly, bench trials are more informal and streamlined than a traditional jury trial. There is no need to select a jury, and it is less necessary to have opening statements. There are a variety of reasons for the defendant to choose a bench trial over a jury trial. For instance, if the key question of the case is legal in nature, a defendant might choose a bench trial because a judge certainly has more knowledge about the law than a lay juror. Similarly, if the case contains very shocking facts such a gruesome murder scene, a defendant may choose a bench trial because it is more likely an experienced criminal judge would be emotionally influenced by the facts.
Plea Bargaining
Although a trial is a constitutionally guaranteed right, every defendant has the authority to waive their right to trial and enter a plea of guilt. This occurs after coming to an agreement with the prosecutor and the best way to resolve the case. This process is known as plea bargaining. Indeed, plea bargaining refers to the dispute resolution negotiations that take place between the prosecutor and the defendant prior to the case going to trial.
Plea bargaining has been part of the criminal justice process since the founding of the nation (Heumann, 1981). However, it was not until the early 20th century before prosecutors, looking for ways to manage their increasing caseloads, began using plea bargaining as a fundamental part of their case administration (Heumann, 1981). As prosecutors increasingly found plea bargaining useful, the majority of judges concluded that plea bargaining violated a defendant’s right to a trial. Moreover, many judges regarded plea bargaining as a way for prosecutors to limit their authority determine and impose penalties. There were also other judges who allowed the use of the plea agreement, but would rule against them whenever there was cause for an appeal. Nonetheless, in the early years of plea bargaining, judges played a very small role (Heumann, 1981).
One result of the rapid integration of plea bargaining into the criminal justice system has been the increased opportunities for criminal defense attorneys in enter early into the process (Heumann, 1981). Indeed, the transformation of criminal cases to include the early presence of the criminal defense attorney in helping to negotiate the plea agreement led to increased cooperation between the prosecutor and the defendant in the early resolution of criminal cases well before trial. To be sure, criminal defense attorneys participation in plea bargaining is focused heavily on the effective and efficient administration of criminal justice. This is exemplified by information sharing among parties, less adversarial proceedings, more effective case management and less crowded court dockets. There are concerns, however, about the equally important rights of the suspects and defendants who, as a result of the increased cooperation between prosecutors and defense attorneys, find themselves being arrested, detained and prosecuted (Heumann, 1981).
Nonetheless, the inclusion of the criminal defense attorney in plea discussions and negotiations are critical for dispute resolution for several reasons. First, it helps decrease the isolated conditions of the defendant in terms of providing some level of control over the outcome of his case. Through the criminal defense attorney, the defendant has the opportunity to learn how the prosecutor views his case, and to share ideas of what he would do resolve the case short of trial (Heumann, 1981). Moreover, it allows some room for a criminal defense attorney to debate and innovate in the early stages of the criminal proceeding rather than at trial or on appeal. Finally, including the criminal defense attorney in the plea bargaining process allows for the development of a more holistic picture of how the rights of the accused are connected and it provides a forum to see how the criminal dispute can be resolved in a number of different contexts.
Only in 1970 did the Supreme Court begin to exert it power over plea bargaining when it held that plea bargaining would only be considered legal when certain safeguards were included in the process (Brady v. United States, 1970). According the Court, these safeguards included ensuring the defendant was fully aware of what it meant to agree to the bargain and the commitments he would be held to; ensuring that the defendant had voluntarily entered into the agreement and was not induced by coercion or misrepresentation; and there was a factual basis to support a plea of guilty to the charges. In 1971, the Court expanded its control of the plea bargaining process by requiring all judges to review and approve all plea agreements before they can be accepted (Santobello v. New York, 1971). Most recently, in 2012, the Court further extended its reach when it held that defense attorneys are required to inform their clients of all plea offers made by the prosecutor (Missouri v. Frye, 2012).
Plea bargaining is the most common form of dispute resolution in criminal cases. While judges in the past were wary of plea agreements, nowadays, judges encourage them. Indeed, today it has been estimated that over 90 percent of criminal cases are resolved by plea negotiations (Heumann, 1981). There are a number of reasons why plea bargaining is useful. For example, the existence or lack of evidence; the seriousness of the alleged crime; the ability or willingness of the defendant to testify; and the likelihood that the defendant will be found guilty at trial all enter into the calculations of whether a prosecutor will make a plea offer or a defendant will enter into a plea agreement.
References
Brady v. U.S. (1970). Retrieved on August 25, 2014, from http://www.supreme.justia.com/cases/federal/us/397/742/case.html
Heumann, M. (1981). Plea Bargaining: The Experience of Prosecutors, Judges, and Defense Attorneys. Chicago, IL: University of Chicago Press.
Kadri, S. (2005). The Trial: A History from Socrates to O.J. Simpson. New York, NY: HarperCollins.
Missouri v. Frye, 311 SW 3d 350 (2012) Retrieved on October 11, 2014, from http://www.law.cornell.edu/supremecourt/text/10-444
Santobello v. New York (1971). Retrieved on August 25, 2014, from http://supreme.justia.com/cases/federal/us/404/257/case.html
