The Disappearing Trial

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 international normative frameworks on fairness in criminal justice have failed to keep pace with the growth in the use of trial waivers.