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The right to a fair trial is perhaps the most central aspect of criminal justice.  Yet, as shown in a recent report by Fair Trials, an international organization committed to human rights in criminal justice, trials are disappearing from legal systems all over the world.  “Of the 90 countries studied …, 66 now have these kinds of formal ‘trial waiver’ systems in place. In 1990, the number was just 19.”  And once introduced, these systems tend to dominate, so that trials become unusual instead of common.

Trials ensure that people are only convicted of a crime based on a full consideration of all the relevant evidence, lawfully obtained.  But in many places they are being replaced by mechanisms designed to make people plead guilty.   As this report and many others have argued, when guilty pleas become the standard the result will almost always be the violation of people’s rights leading to unjustified convictions, and all the many negative consequences of a criminal record.

In Canada,  90% of criminal prosecutions that proceed (about 25% never get as far as a plea or trial) are settled by a guilty plea.  And even then, it can easily take well over a year for a trial to happen.  If even half of those charged with a crime in Canada actually went to trial, the system would collapse entirely.  We can only maintain a system that allows trials because the overwhelming majority of cases don’t have them!

Pressure to plead guilty

Those charged have to decide whether to agree to a plea often without adequate information or advice.  “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.”

Most accused, especially on a first charge, are overwhelmed with the emotions of their situation and the short-term consequences, such as the threat to family connections, or to employment.  The temptation to ‘just get it over with’ is very strong.

Coupled with that is the ignorance most defendants – and even many criminal lawyers – have of the long term consequences of a criminal record.  A record can cause lifetime problems in finding a job, renting an apartment, getting credit, traveling (or even getting a passport), custody of children, and so on.  Few people know enough to consider carefully these consequences when they make a plea agreement.

Waivers and violations of rights

Without a trial the evidence against a person will never be properly tested.  When most charges are settled through pleas, there is more temptation for police and prosecutors to make charges even with relatively weak evidence.  “Experts at the Washington roundtable expressed concern that a diminishing incidence of trials may be having a deleterious effect on the overall quality of investigations. Investigators do not have to be concerned that the evidence and the procedures undertaken would be thoroughly tested at trial.” Sloppy or even illegal work by the authorities, such as illegal searches, tunnel vision, use of unreliable witnesses or poor forensic evidence gets accepted.

Prosecutors also have an incentive to levy multiple charges for the same action.  They can then promise to drop some charges as a way of making a plea look better, even though those multiple charges should never have been laid in the first place and may have little or no effect on a sentence.

Without trials, wrongful convictions are more likely.  People plead guilty to things they did not do or things to which they have a valid defense because they are afraid of the more severe penalties if found guilty, because the trial process takes years, because they may have to stay in jail until their trial happens, or because they cannot afford the tens or hundreds of thousands of dollars in legal fees that a good defense costs.  We have abundant evidence of this; as the report shows, many people later exonerated of the most serious crimes, such as murder, actually plead guilty.

Overcriminalization and discrimination

Another result of fewer trials is overcriminalization.  More people may be arrested and charged because their cases can be disposed of relatively easily.  More people end up with criminal records.  If more people went to trial, one result would likely be fewer people charged in the first place in order to manage limited resources.

As with all aspects of criminal justice, the burden of these problems is most likely to fall on people who are young, poor, or visible minorities.  So the mass use of pleas contributes to making the justice system more inequitable.

How to do better

There are situations in which a plea can make sense.  Trials are time consuming and expensive.   But a system in which people are essentially coerced or threatened into pleading guilty cannot serve the interests of justice.  And the report notes that there is no evidence that fewer trials does actually save money or speed up the process.

Despite the increase in trial waivers in many countries (for example Argentina, Colombia, Russia, or South Africa), the practice is not universal; according to Fair Trials it remains unusual in Italy, India, and Chile among other places.

Fair Trials proposes several measures to protect fairness and integrity in this system.

– Judges should be more involved in reviewing the evidence and the plea agreement process to make sure the rights of the accused are being protected.

– Anyone charged must have access to proper legal advice before any agreement is made.

– There should be full disclosure of all evidence before any discussion of a plea agreement, so that the person charged can be fully aware of the case against him or her.

These changes would improve the Canadian system considerably.