The Disappearing Trial
| Author | Jago Russell,Nancy Hollander |
| Published date | 01 September 2017 |
| Date | 01 September 2017 |
| DOI | 10.1177/2032284417722281 |
| Subject Matter | Analysis/Opinions |
Analysis/Opinion
The Disappearing Trial:
The global spread of
incentives to encourage
suspects to waive their
right to a trial and
plead guilty
Jago Russell
Fair Trials, UK
Nancy Hollander
Associate Tenant, Doughty Street Chambers, UK
Abstract
A common view exists, reflected both in law and in the public consciousness, that the trial is the
key safeguard guaranteeing the fairness of criminal convictions. In reality, many convictions are
imposed without a trial because suspects often waive their right to trial by pleading guilty. Legal
systems incentivise defendants to do this (by, for example, offering lower sentences or charges in
different ways). This practice (most often associated with US plea bargaining) has spread across the
globe over the past 25 years. It is easy to see the benefits of trial waivers, which include helping to
tackle impunity and to reduce long case processing times and related over-reliance on pretrial
detention. However, this shift away from the full guarantees of a trial can also pose serious
challenges to the protection of rights, due process and the rule of law. The domestic and inter-
national normative frameworks on fairness in criminal justice have failed to keep pace with the
growth in the use of trial waivers.
Keywords
Plea bargain, joint waiver, fair trial, due process, procedural rights
Corresponding author:
Jago Russell, Fair Trials, UK.
Email: jago.russell@fairtrials.net
New Journal of European Criminal Law
2017, Vol. 8(3) 309–322
ªThe Author(s) 2017
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DOI: 10.1177/2032284417722281
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