The Champion

January - February 2016 , Page 20 

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Bargaining for More Trials

By Gregory M. Gilchrist

The criminal justice system is built around the jury trial. An adversarial hearing at which each side presents evidence before a neutral body is the core of the system. And yet, trials are far more prevalent in the rules and popular imagination than they are in courtrooms. In reality, almost all defendants plead guilty.

This article proposes harnessing 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. In this way, a trial on the merits can be preserved, while offering the defendant some protection against unjust trial penalties.

I.    What It Means to Bargain for a Trial

The Constitution guarantees most defendants a right to a jury trial. While only a tiny percentage of defendants exercise this right, it is nonetheless the defendant’s right. So what does it mean to bargain for something to which one is entitled?

The phrasing is perhaps a

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