3 April 2008

Plea bargaining

With the recent publicity about the delays in criminal trials in the District Court, perhaps it is time for us to look at a formal system of plea bargaining.

For a general explanation of exactly what plea bargaining involves, see this article.

Whilst we do have a system of negotiation here in South Australia, this is not done with the direct assistance of the Judges.

The other main difference is that the DPP and Defence Lawyers cannot "agree" a specific sentence that is then rubber-stamped by a Judge. That of course runs a little contrary to our strongly held principals of judicial independence, and that is one of the arguments against such a system.

The one thing that an accused person often craves is certainty. The uncertainty of the sentence that might ultimately be imposed under the current system is a dis-incentive to some accused people pleading guilty to certain offences.

My clients will frequently say things like, "If you can guarantee I'll get 4 years, then I'll plead guilty," but in our current system such a guarantee is not possible.

Even the usually conservative English legal profession has been examining the possible benefits. See this article.

Plea bargaining: not perfect, but it works - Times Online
British judges, lawyers and prosecutors have spent two years hammering out the finer details of how to introduce a similar system here.
It would not be the solution to all of our problems, but it just might help.


Tex said...

I hate the term 'plea bargaining', it has a very American taint to it.

I always thought I was pretty good at negotiating (a far better term).

It can be likened somewhat to a certain TV game show (if you can stomach Eddie McUbiquitous mangling the word "millions" into "miwwions") where the $1,000,000-00 represents the outcome of the Trial. If you are prepared to risk it, you can have an acquittal.

However, this requires that you answer all the questions correctly (ie, not get caught out in an obvious lie), and there aren't any lifelines (other than maybe 'phone-a-friend' to give you an alibi).

If you're not prepared to risk it, there is always the consolation prize which is a guilty plea to a lesser charge and maybe a little custodial sentence or even a suspended sentence.

From the right (as in not-left, not not-wrong) side of the bar table, the risk was that an acquittal would mean costs (more paperwork), blame-avoidance (even more paperwork) and having to try to explain to bewildered victims, witnesses and investigators what "beyond reasonable doubt" means in practical terms.

Whilst a custodial sentence was always a nice thing to ask for (as one of my companions used to say deadpan "for a guilty plea, we are not opposed to the maximum") this was usually something that could only be done at the conclusion of a successful prosecution. For guilty pleas (whether negotiated or not) the best one could do was remain silent and tender the antecedents and hope that would be enough (sometimes it was, sometimes it wasn't).

I was no fool. I knew exactly what the burden was... It didn't mean beyond all doubt, or the merest scintalla of doubt, but beyond reasonable doubt. A difficult-to-define state at best and an elusive goal.

Sometimes, you had to face facts, wake up and smell the coffee, swallow your pride, eat humble pie and withdraw, agree facts and put on a united front to get something akin to justice.

I always preferred dealing with represented defendants. I didn't have to convince the defendant that he was in trouble and should plead, I only had to convince his counsel and it was then THEIR job to get instructions to that effect.

Most counsel were pretty sensible about it too. It was a rare solicitor who would fight everything and concede nothing. (I can think of a few, but it would be churlish of me to name them.)

Let's face it, win, lose or draw, it wasn't them that was facing a stretch, so this allowed them a large measure of objectivity. Many's the time I'd sit back and watch counsel take hurried instructions when the Magistrate indicated his attitude towards penalty. The same applied to me; many's the time I had to thank His/Her Honour for their candor, call for a short adjournment, make a panicky phone call to someone in authority and then ask the question... "What are you seeking in costs?" (Much later, I had my own authority, and the phone calls were few and far between.)

But, sometimes, you just had to hitch up your pants, take a deep breath and say "Your Honour, the Prosecution case is..." and let the chips fall where they may...

As I used to say, "Anyone can run a Trial. The real trick is in negotiating one out."

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