Talia Fisher  “The boundaries of plea bargaining: negotiating the standard of proof”, in Journal of Criminal Law and Criminology, Summer 2007

The author proposes to extend the system of plea bargaining by allowing defendants to negotiate a lowering of the standard of proof “beyond reasonable doubt” to that of civil disputes.  The author examines the goals of the judicial process and places the designates for the truth as merely a means to pursue justice, not a goal per se.

From the Introduction:
“The public model of criminal procedure, which places the procedural aspects of the proccess beyond the reach of the defense and the prosecution, has given way to a new model: a semi-private paradigm that acknowledges the right of the parties to wield effective control over the procedural structure of the criminal trial. The adoption plea bargains expresses a readiness to open the criminal arena to contractual ordering. (1) Many features of the criminal process have turned into default rules and ‘bargaining chips’ (2) in the […] of the defense, including the Fifth Amendment right against self-incrimination, (3) the Sixth Amendment right to a jury trial, (4) and the right to appeal. (5) In exchange for deviation from and waiver of these rights, the defendant may receive various concessions from the prosecution, including mitigation in the charge or the sentence.”

p. 14:
“The assumption is that since the prosecution reflects the public interest and the defense reflects the defendant’s interests, voluntary transactions between them represent pareto improvements in the situation of both the defendant and society at large. Another justification for opening the criminal justice arena to negotiation stems from recognition of the defendant’s decisional autonomy and his right to exert effective control over the manner in which his fate will be determined. The very exposure to criminal proceedings puts substantial limits on a defendant’s range of choices…Denying plea bargaining puts the poorer defendant in a double bind in this respect: On the one hand, the use he can make of his procedural rights within the trial apparatus is extremely limited in comparison to the wealthier defendant; on the other hand, in a world without plea bargains, where ‘realization’ of these procedural rights is contingent upon entrance to the trial arena, he is prevented from improving his position by ‘trading’ on these rights outside the trial arena.  In this sense, it is possible to view the closure of the criminal justice arena to negotiations as a sort of regressive taxation placed upon defendants from a lower socioeconomic bracket, in order to preserve the incommensurability and the use value of the procedural rights for the general class of defendants.”
[HERE the author purports to speak on behalf of the millions of poor defendants, whereas in practice, it is exactly the opposite]

p. 15 (Considerations against plea bargaining)

“A major market failure is attributed to principal-agent problems, which arise in plea negotiations. In the spirit of this critique, the criminal procedure is not merely a market institution; rather, it can be seen as a political instrument through which the prosecutor may advance his own private agenda. Such a private agenda is liable to be inconsistent with the public interest and may even collide with it head-on. Thus, for example, the interest of the prosecutor in high conviction rates for professional promotion purposes may clash with the public interest in non-conviction of the innocent.. [P]lea bargains give the prosecutor room to maneuver and reduce court supervision.  An additional agency problem that may arise in connection with plea bargains touches upon the tension between the interests of the defendant and his counsel. A combination of the fact that the prosecutor does not fully internalize the public interest in his utility function and the fact that the counsel for the defense may fail to promote the defendant’s interests may lead to two types of problematic results. On the one hand, the plea bargaining mechanism paves the way for the conviction of the innocent persons, with its accompanying costs and negative externalities [note the euphemism]; on the other hand, plea bargains may expose the criminal to a lesser punishment than is desirable from a social perspective.”

p. 15
“A related criticism is that negotiations in the criminal arena are coercive by their very nature. This is due to the power disparity between prosecution and defense…Critics argue that as a result of the coerciveness built into criminal justice negotiation, one cannot view it as an expression of the defendant’s free will…One can argue that procedural safeguards and rights touching upon the criminal trial are intended to advance public goals, such as arriving at the truth, and not aimed at leveraging benefits for the defendant.  The attempt to turn such rights into bargaining chips for the defendant, in order to bolster his position vis-a-vis the prosecution, is not legitimate…In sum, it is not surprising that the practice of plea bargaining has stimulated one of the stormiest controversies in the area of  criminal procedure; placing criminal disputes in the hands of prosecutors and defendants, to be settled by contractual means, can be seen as undermining basic concepts in the moral and political philosophy of criminal law….[Yet], the die has been cast. The fact that plea bargaining has taken root and expanded to its present magnitude indicates a normative choice in the matter. Such reality recognizes the legitimacy, in principle, of plea bargains and prefers the advantages, embodied in the opening of the criminal justice arena to contractual ordering, over its disadvantages. [Legitimacy? cui bono?].

p. 17  
“Changing the criminal standard of proof to a default rule from which the parties can negotiate deviations can be supported by the same considerations of efficiency, autonomy, and distributive justice that form the basis for recognizing the institution of plea bargaining.”

p. 23  “[M]ost criminal sentences under the existing system are in fact reached outside the courtroom…Plea bargains are negotiated between the prosecutor and the defendant [or his counsel], far form public view.”….In order for courts to fulfill their roles in a liberal society, their work must be properly structured [euphemism]. Judicial decision-making must be conceptualized as searching for truth and justice and must be in line with the criteria of rationality, accuracy, and fairness. The existing practice of plea bargaining does not impair the proper conceptualization of judicial decision-making because the mutual agreements on the question of criminal liability take place outside the courtroom…Due to the existence of such clear boundaries between the “world of agreement” and the “world of justice”, the present form of plea bargaining does not “stain” the perception of the craft of judging.”

p. 24   “The case can also be presented from a slightly different perspective: that of public confidence in the judicial system. There is room to claim that public trust is conditional upon conserving the basic outlines of the judicial decision-making process, as aimed at precision and ferreting out the truth.  Plea bargaining, in its current form, paves the way for the preservation of this notion. Even though, from a practical standpoint, this preference is not exposed to public scrutiny. Current plea bargains allow for the assumption that the parties have the best access to the information underlying the factual occurrence and, accordingly, that the agreement of criminal liability they reach reflects the truth.  The proposed model, on the other hand, may undermine the public image of the criminal trial.  Its adoption is a blunt declaration that a judicial decision may well be affected by inaccuracy – that the truth is not the only light held up to the court and that it may retreat in the face of agreement between the parties. Exposure of these inherent tensions within the court’s rulings may undermine the public’s faith in the judicial system. As soon as the conflict between ”truth” and “agreement” becomes visible, and the courts are perceived as preferring agreement to truth, public trust in the judiciary may well be lost.”

p. 27
“There is room to claim that the devaluation of the ‘criminal conviction’ label has already taken place with plea bargaining becoming the typical mechanism for disposing of criminal cases. In a regime where the overwhelming majority of criminal convictions derive from plea bargains, their stigmatizing effect can not longer be taken at face value.”

p. 28
“I would like to present an alternative, more ‘private’ or ‘civil’ approach, according to which the search for truth is not the be-all and end-all of the criminal process. Rather, the primary purpose of the criminal proceeding is the resolution of criminal disputes – whether defined as disputes between defendant and society or between defense and prosecution. In accordance with such private perception of the criminal proceeding, only when the parties are not in agreement on the factual happenings must the truth-seeking alternative be exhausted…In this sense, the goal of the criminal process is not accomplished when the truth is revealed: truth is only a way station on the road to the settling of the dispute.  The ultimate goal is the agreement, with truth being a means to achieve it….Naturally, this ‘private’ or ‘civil’ perception of the criminal process stands in stark opposition to the public paradigm, which view the agreement between the parties on question of fact merely as a means to discover the truth. Under the public model, where the prosecution and defense agree on facts, they are presumed to reflect the actual happenings.” [The last proposition is, alas, not always the case].

p. 29  
“Clearly, the ‘private’ or ‘civil’ approach to criminal trials conflicts with prevalent criminal theories, according to which the public nature of the criminal process is incontestable and cannot be infiltrated by private notions of justice…All that I wish to add at this point is that the recognition of the central role of agreement in criminal procedures, even overriding truth, is not foreign to the adversarial paradigm. According to the adversarial model, defense and prosecution share the prerogative of laying the whole factual basis before the court and mutually define the limits of the criminal dispute. Their agreement overrides the factual truth and the court is prevented, in principle, from examining it independently.  That is, the concept of truth in the adversarial model is relative and plays an instrumental, secondary role. This differs from the inquisitorial model, which relies on an absolutist notion of truth. In the light of the instrumental role truth plays in the adversarial model, there is no wonder that plea bargaining practices began to flourish in this legal climate.”…The very opening of the criminal arena to negotiation expresses a recognition that criminal justice is not only the product of the collective search for truth, but may also be the outcome of private, localized agreements between prosecution and defense.”