The Precious Right to Trial

In the American criminal justice system, the majority of individuals charged with a crime never have their case factually determined by either a judge or a jury. In the vast majority of cases, the defendant accepts a negotiated settlement that usually resolves the responsibility concerning the criminal conduct and the punishment that will be received.

The purpose of this article is not to dismiss the value of plea bargaining, but to demonstrate why going to trial regardless of the discovery (the State’s alleged evidence), exercising one’s right to trial is both a bonus to the individual and society at large.  While the argument will contain certain flaws scholars see in the bargaining versus trial scenarios, the ultimate advantage of trial is that it creates a form of transparency in regards to how the police, prosecutors, defense attorneys and the judiciary in a local area operate.  With this knowledge the citizen’s can give their praise or demand for reform.  Without seeing the entire operation, this ability is stifled.

The United States uses the adversarial model theory.  Under the adversarial model theory equal adversaries (Government v. defendant, Plaintiff v. Defendant) introduce conflicting versions of the facts and law for decision by a neutral and passive arbitrator. In plea-bargaining, the adversaries may be equally at odds, but ensure that they "play fair," or to make a decision on the merits.  The divergence from the core expectations of the adversarial model may undermine valid competitive adjudication.

While pretrial settlements in civil matters has its value based upon the openness of the discovery process via interrogatories and depositions, the range of bargaining is much more limited in criminal prosecutions. In most civil cases, the parties can reach a settlement for any dollar amount between total victory and total surrender. Pleas in criminal cases ordinarily represent an all or nothing choice between accepting guilt or establishing innocence.  A variety of  offenses and sentences that one could factually plead to may exist, but at least stigma and possibly jail time usually will result from any type of plea. One therefore cannot lightly assume that a middle ground exists somewhere in the spectrum of results that will make both the prosecution and defendant better off. A related factor distinguishing criminal negotiations from most civil negotiations is the difficulty of measuring and comparing the benefits that the parties receive from a plea agreement.
The prosecutor is charged with achieving a result that satisfies society's sometimes-struggling expectations for vengeance, deterrence, and fairness.  The defendant seeks to minimize incarceration, loss of reputation, and damage to his
May not be able to tell when a trade-off between the prosecutor's preferences and the defendant's preferences enhance total utility. From a societal perspective, one cannot even assume that an increase in the defendant's well being is a good thing.

Finally, arguably, a plea bargain itself should not be conceived as a voluntary agreement, because of its coercive elements. Both the prosecution and plaintiffs in civil suits force defendants into bargaining by filing their lawsuits. Once civil litigation commences, however, adversarial theory assumes that the opposing litigants can inflict equal costs upon each other for proceeding to trial. The prosecution, in contrast, can exercise coercion unilaterally for the purpose of encouraging a settlement; for example, by threatening lengthy pretrial detention through the setting of higher bails and interfering with the defendant's ability to earn his livelihood by other restrictions of his liberty and reputation. The defendant can do nothing in response, other than to refuse a plea. Thus, in a limited sense, plea-bargaining is inherently unequal. Defendants may be forced to agree to a settlement reflecting something other than their evaluation of the objective benefits of pleading guilty.  This is especially true if the defendants are under a equal standing as with the typical DUI case, but one is incarcerated and exposed to more penalties if they reject the State’s desires and elect to go to trial, regardless of the State’s ability to prove its case at trial, while the other is given.

A person who is in fact guilty of a crime has not only no legal obligation but also no moral obligation to do harm to himself by confessing his guilt to the State and facilitating his own conviction and punishment at the hands of the State.  That is the underlying basis of the Constitutional right against self-incrimination.  It is therefore entirely inappropriate to punish at sentencing a defendant who insisted on going to trial for a non-existent moral failing intrinsic to the defendant. The defense recognizes the State does have a legitimate interest in resolving criminal cases by plea rather than trial, based not only on the public expense of trial, but also on the slight possibility that a court or jury might fail to convict a defendant whom the evidence in fact proves is guilty beyond a reasonable doubt. While it may behoove the prosecution in plea-bargaining and/or the judge at sentencing to give defendants who plead guilty some inducement and consideration for saving the public the expense and the risk of trial, such consideration has nothing to do with the moral blameworthiness or praiseworthiness of the defendant. This differential treatment has the ability to become a “trial tax.”

A trial tax violates the defendant’s right to due process since the bottom line is that a defendant who is convicted after trial is likely to be sentenced more “harshly” than if he had pled guilty, even though defendants who are convicted after trial and defendants who plead guilty “deserve” the same sentence.  It can be desire to save the public the expense and risk of trying them, nor should they be.
If it is a court’s policy to treat all defendants the same because the judge feels the defendants’ behavior is reprehensible, then logically the judge would look into those cases in which the defendants pled guilty to determine how much time to give pursuant to the “reprehensible facts.”  However, having only the defendants who exercise their constitutional right to a trial be given harsher sentences, to include incarceration when all others are given probation, is contrary to fairness on all levels and cannot be treated as anything other than a “trial tax.”

We, as a society tout our system, that it is based upon a “rule of law.”  Maybe the world sees better our hypocrisy and sees that the judiciary becoming a rubber stamp for the executive branch, especially police, prosecutors, and senior administrators.  It is hoped that even in the politically charged atmosphere which the judiciary must trek through, it is the true rule of law that becomes the standard, judges deciding cases based upon considered facts entered into the record and not the sought endorsement by police unions, advocacy groups such as MADD, STOP DUI, National Coalition Against Domestic Violence, Safe House, or other federal funding that promotes job security of the judge at the expense of the public’s social welfare.  The world’s past history provides plenty of examples of that corruption and the impacts therein when that attitude prevails.  In fact it lead a small group of men to break off from an empire, declare themselves independent, and draft a set of government concepts in which liberty was protected against tyranny.  Let us hope our current “sophistication” does not lose the valuable wisdom of the past.

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