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Publication

The Disappearing Trial Report

A global study into the spread and growth in trial waiver systems

April 27, 2017
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A report drawing on research from over 90 countries, examining the growing reliance on plea bargaining. The report was produced with the pro-bono support of Freshfields Bruckhaus Deringer  A summary of the report is also available to read and download here. 

Foreword

The trial is the archetype of criminal justice. It has captured the public imagination. Just think of the dominance of courtroom drama in film, TV and literature: the intense personal drama of the trial for the defendant, whose life hangs in the balance. The public drama of the trial: after the shadowlands of police custody, the evidence and the actions of police and prosecutors are exposed to the bright light of scrutiny. The public sees the rule of law in action, witnesses real time the search for truth and justice.

But the trial is starting to disappear. In many parts of the world, trials are being replaced by legal regimes that encourage suspects to admit guilt and waive their right to a full trial. Of the 90 countries studied by Fair Trials and Freshfields, 66 now have these kinds of formal “trial waiver” systems in place. In 1990, the number was just 19. Once introduced, trial waivers can quickly dominate. In Georgia, for example, 12.7% of cases were resolved through its plea bargaining system in 2005, increasing massively to 87.8% of cases by 2012.

The drama of the contested trial is being overtaken by “deals” struck behind closed doors. The personal drama, of course, is no less intense. As a defendant, you have a single life-changing decision to make. Confronted with the overwhelming power of the state and often in detention, your options probably don’t look particularly appealing: plead guilty and get convicted, albeit with a shorter sentence; or gamble on your chances in court where, if convicted, you’ll be sentenced more harshly.

It is easy to see the appeal of trial waivers for states. Without a suspect who is persuaded to cooperate, complex cases can be hard to prosecute. Giving people an incentive to plead guilty and give evidence can crack a case wide open. Contested trials can also be expensive, time-consuming and traumatic. Many countries simply can’t afford the rigours of a fair trial. The result can be a cycle of impunity and lawlessness – the breakdown of the rule of law. More commonly, people continue to get arrested but, with underfunded courts incapable of processing cases, the justice system grinds to a halt. Detainees fester, forgotten for months or years in prison just waiting for their day in court.

Trial waiver systems certainly have advantages but they are not without risks. When it comes to criminal justice reform, the reality is that there are no “silver bullet” solutions.

When “incentives” to plead guilty become too extreme, they can persuade innocent people to admit crimes they did not commit. “I’d never plead guilty to something I didn’t do” – you may think this, but going to trial is a gamble and the stakes can be exceedingly high: defendants may plead guilty to avoid the threat of the death penalty or life without parole. In federal drug cases, mandatory minimums have contributed to a system in the US where defendants convicted of drug offences received sentences on average 11 years longer by going to trial rather than pleading. To provide more context for this statistic, in the United States, 65 out of the 149 people exonerated of crimes in 2015 had pleaded guilty (44%).

Guilty pleas can also hide gross human rights abuses from scrutiny in open court. In a country where torture in police custody is a daily reality, imagine the combined effect of this with the threat – “plead guilty now or…”! If convictions become too easy to secure, they can also facilitate overcriminalisation and over-incarceration of all or, more commonly, part of the population.

Those of us who care about justice, need to wake up to the new and emerging reality of criminal justice, because trial waivers without safeguards can pose major risks to human rights and the rule of law:

  • It is not only popular culture that is still dominated by an outdated view of the trial as the guarantee of fairness in criminal justice. So, too, is the law. Many domestic constitutions and the post-war human rights framework were defined at a time when formal trial waiver systems were rare. Courts charged with interpreting and enforcing these standards have failed adequately to address trial waivers.
  •  A comparative study of this breadth can only ever scratch the surface but it is abundantly clear that countries developing trial waiver systems should not do so in a bubble. They must of course address local needs and realities – cut and paste justice reform doesn’t work – but countries should draw on the wealth of international experience to help mitigate risks.

Whatever you see on TV, criminal justice is about more than trials. It is not realistic or, indeed, desirable, to have a full trial in every case. It is certainly not efficient. We must, though, remain vigilant against sacrificing transparency and justice on the altar of efficiency because fair and effective criminal justice systems are too important to the secure, safe and prosperous societies we all want to live in.

Executive Summary

Trial Waiver Systems:

There is a common view, reflected both in law and in the public consciousness, that the trial is the key safeguard which guarantees the fairness of criminal convictions. In reality, however, many convictions are imposed without a full trial ever taking place as a result of systems which incentivise suspects to waive their right to a trial. Taking various different forms across the globe, including plea bargaining, abbreviated trials and cooperating witness procedures, this growing practice has considerable implications – both good and bad – for human rights and the rule of law.

It is easy to see the benefits of these trial waiver systems, which include helping to tackle impunity and to reduce long case processing times and related over-reliance on pre-trial detention. However, this shift away from the full guarantees of a trial also poses challenges to rights protection and the rule of law. The domestic and international normative frameworks to regulate this new practice has, however, failed to keep up with the growth in use of trial waivers, with surprisingly little guidance or jurisprudence on this rapidly expanding practice.

Research:

Fair Trials and its pro bono partner Freshfields have collected information on the existence and operation of trial waiver systems in 90 jurisdictions internationally in order to better understand the scope of the practice and its potential implications for human rights and rule of law protection. Surveys circulated to lawyers sought to collect basic information on whether a trial waiver system exists, and if so: what laws and/or policies govern the system; when the trial waiver system was introduced; the reasons for introduction of the trial waiver system; how commonly the trial waiver system is used; and how the trial waiver system works in practice. More detailed analysis was then carried out in eight jurisdictions.

Findings:

Of the 90 jurisdictions for which information was collected, trial waiver systems were identified in 66. A variety of types of trial waiver systems were identified, including: (a) sentence incentives; (b) charge incentives; (c) fact incentives; and (d) cooperation agreements/crown witness systems.

Growth:

The formalisation, adoption and use of trial waiver systems has clearly increased dramatically in the last 25 years. Before 1990, only 19 of the 90 jurisdictions studied here featured trial waiver systems in law. By the end of 2015, the number had grown to 66, reaching all six major continents and changing practice across a variety of different legal systems and traditions. Limited data collection and sharing by governments on the operation of trial waiver systems makes a comprehensive understanding of their use difficult, but it is clear that in some jurisdictions, trial waivers come to largely replace trials (for example, concluding 97% of federal cases in the US), a process which in some jurisdictions has taken place rapidly over the course of just a few years.

Opportunities:

Trial waiver systems are adopted for a variety of reasons, efficiency being the most prominent. Many jurisdictions have strategically implemented cooperation agreements in efforts to tackle corruption, complex and organised crime. Trial waiver systems are frequently created in the context of broader legal reforms to modernise and reform national criminal justice codes and introduce adversarial elements of criminal procedure. Human rights concerns, including lengthy case processing times, excessive use of pre-trial detention, and impunity for corruption, are prominent motivators for the adoption of trial waiver systems in many jurisdictions.

Risks:

At the same time, the diminishing use of trials can threaten human rights protection and the rule of law by sidestepping procedural safeguards and risking coercion, and undermine the rule of law by reducing public scrutiny of police and prosecutorial practices and rights violations. When conducted without sufficient transparency and regulation, trial waivers can reduce public faith in the system, and potentially undermine anti-impunity and anticorruption efforts. Furthermore, although trial waivers may be adopted with the aim of reducing detention or public spending, their use in some jurisdictions to obtain convictions en masse risks over-incentivising criminalisation and conviction, with unintended and potentially costly effects on incarceration downstream.

Safeguards:

The types of trial waiver systems in place are diverse, and many contain features that can safeguard procedural rights. These include: (a) enhanced protection of procedural rights; (b) regulation of benefits offered in exchange for trial waivers, for example by limiting sentencing discounts; (c) limitations on the types of cases or defendants for which trial waivers may be used; and (d) greater judicial oversight over procedural and evidentiary requirements.

International legal framework:

Despite the widespread use of trial waiver systems around the world and their potential impact on the procedural rights of the accused, the presumption of innocence and freedom from torture, the international human rights framework has yet adequately to address this phenomenon. The few relevant cases from international and regional tribunals and guidance from human rights bodies that do exist are insufficient to provide a comprehensive framework for human rights protection in trial waiver systems.

Recommendations:

Detailed reforms will necessarily be jurisdiction-specific, given the wide variety of practices documented by this report. In general, there are four broad recommendations for jurisdictions to ensure trial waivers operate effectively.

  1. Legal Framework: International and regional human rights bodies must develop a legal framework to effectively govern the use of trial waiver systems.
  2. Human Rights Audit: National authorities should conduct an audit of human rights protections in trial waiver systems, which should ensure that: (a) procedural rights of defendants are fully maintained; (b) undue coercion is not caused by harsh sentencing or pre-trial detention regimes; and (c) sufficient judicial and public oversight of police and prosecutorial activity is maintained.
  3. Data Collection: States must monitor the impact of trial waiver systems through improved data collection, including information on the impact of trial waiver systems on rates of arrest, prosecution, conviction, and incarceration; use of pre-trial detention; sentence length; and impact on vulnerable groups.
  4. International Knowledge Exchange: Examples of good and bad practice, risks and safeguards to human rights protection should be shared by stakeholders across international jurisdictions, and should involve stakeholders from across affected government and civil society sectors.

 

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If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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