Lay Participation and Consensual Disposition Mechanisms

• NCJ Number: 200846
• Journal: International Review of Penal Law Volume: 72 Issue: 1-2 Dated: 2001 Pages: 595-601
• Author(s): Thomas Weigend
• Date Published: 2001
• Length: 7 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: France

Annotation

This article discusses lay participation and bargained justice.

Abstract

Trial by jury and bargained justice appear to be mutually exclusive. Consensual justice is a matter of and for legal professionals. Lay persons are excluded. The incompatibility of lay justice and bargained justice means that any expansion of plea-bargaining must be expected to bring about a decline in significant lay participation. In recent years, consensual criminal justice has spread to the non-English-speaking world. One of the reasons for this expansion is because trial by jury is expensive, complicated, and time-consuming and cannot be offered to each and every defendant. But this theory would not apply to countries with legal systems that have purely professional judiciary. Maybe it is not who is trying cases but how they are being tried that creates incentives for resorting to informal justice instead of trial. It is not lay justice that has endangered plea-bargaining, but plea-bargaining may bring the end of lay justice. Plea-bargaining has to be done by one that knows about the applicable rules of law and evidence. Because lay persons lack this information, they cannot participate in negotiations. This does not mean that lay judges are an endangered species because there will always be cases in which the prosecution wishes to make the crime a public affair, the defendant insists on being innocent, or the parties simply cannot agree on a disposition. The jury trial serves as an incentive for parties to compromise. The unpleasantness and expense of a jury trial is the most forceful argument in favor of a consensual disposition. As long as determination of verdict and sentence is left to unregulated bargaining between the parties, lay judges cannot play any positive role in the criminal process. Some procedural options have been tested in various jurisdictions. One of the most promising ways of resolving non-contested criminal cases without trial is a judicial or judicially controlled pretrial investigation culminating in a provisional judgment based on the written record.