Daily Archives: August 27, 2007

Rewind: Should we shorten criminal trials?

Hello from New Zealand! Hope everyone is doing okay. There’s no jumpstart this morning – the Kiwis don’t like internet. So here’s a post from June 2005, in which I ask if we should do everyone a favor and shorten trials.

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Have opinion, will travel asks if we should put the 6th Amendment up for bid. He talks of a story from England that the Lord Chancellor is cutting down criminal trials in order to save costs.

By having an agreed statement of facts, he explained, lengthy fraud trials could be made much shorter. If cases over-ran, lawyers – rather than taxpayers – would absorb the extra costs.

So the question is: would this work in the U.S.?

A couple of things jump to mind – one is that the state has to prove every element beyond a reasonable doubt. If parties in a criminal trial were to stipulate to certain facts, that would eat into that hallowed principle. It then leads into issues of due process and equal protection that I’m just not willing to discuss on a Sunday.

The other thing that pops into mind is that if the lawyers are going to be forced to pick up the tab for lengthy trials, there will be greater incentive to pressure their clients into taking deals that might not be favorable. The state would have the incentive to be hard-lined about their offers and defense attorneys, knowing that they’d have to pony up money, would perhaps not go all the way.

It must be noted that it seems that in England, trials last far longer than they do here, so perhaps the motivation might not be as strong in the U.S. A standard trial here could last anywhere from one day to three weeks. You’d be hard-pressed to find a trial that goes on for over a year. The percentage of cases going to trial is also minute as compared to cases that end up in pleas.

Also, Ken explores the question of indigent defense by contract.

Thoughts?