Gregory M. Gilchrist
Abstract:
The criminal justice system is built around the jury trial, but almost all defendants plead guilty. This essay suggests that defense lawyers should employ the mechanism that killed jury trials – bargaining – to revitalize the jury trial. Specifically, lawyers ought to negotiate limited trial waivers in exchange for limited leniency. Trial bargaining offers a tool that will mitigate the harms of plea bargaining and generate more, and sometimes better, options for clients. Why would a prosecutor want to bargain for a trial? What trial rights may defense counsel agree to waive? The essay offers three examples of trial bargains as well as a sample agreement the parties can present to the court.
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