The boundaries of plea bargaining: negotiating the standard of proof.

• Author: Fisher, Talia

1. INTRODUCTION

   Ever since the practice of plea bargaining took root in the Anglo-American legal world, the face of the criminal sphere has changed beyond recognition. The public model of criminal procedure, which places the procedural

   aspects of the process 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 of 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 hands 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. This allows for the efficient resolution of the criminal case, and enables both prosecutor and defendant to avoid the costs of trial. (6) In addition to their attributed efficiency, plea bargaining practices can be normatively anchored in the defendant's autonomy of will, (7) and in his fight to effective control of his fate. (8)

   This Article explores the boundaries of the negotiations under discussion and examines whether the current borderlines, set between alienable procedural rights (which the defendant may waive in exchange for sentence mitigation) and inalienable procedural rights (which may not be waived) can be justified. It makes a case for expanding the range of alienable procedural rights with regard to plea bargaining and for the extension of the boundaries of negotiation in the criminal arena. The test case on which I choose to focus, in order to examine the expansion of the negotiation borderlines, touches on the standard of proof. This Article examines the issue of changing the criminal standard of proof to a default variable from which the prosecution and defense can agree to deviate. According to the model under examination, the prosecutor would be able to "acquire" from the defendant a reduction of the standard of proof required during the criminal trial. The parties could agree that the standard of proof to which the prosecutor must adhere, in order to meet the burden of proof, will be less than "beyond a reasonable doubt." For example, the prosecution would be able to obtain a conviction if it established the case against the defendant in accordance with the civil standard of proof--preponderance of the evidence. The prosecution may also obtain "exemption" from the need to present corroborative evidence, or even reach an agreement for the reversal of the burden of proof between the parties, in which case the defendant takes it upon himself to prove his innocence beyond a reasonable doubt. In exchange for the greater risk of being convicted under a lower standard of proof, the defendant would face a lighter sentence in the event of conviction. The degree to which his sentence is reduced would reflect the extent to which the agreed-upon standard of proof deviated from the negotiable default constituted by the criminal standard of "beyond a reasonable doubt." It should be emphasized that the basis for stipulation and deviation from the standard of criminal proof would be consensual, expressing the mutual wishes of both parties to the judicial process. (9)

   Under the current legal regime, the standard of proof is considered a constitutional safeguard of the criminal trial. (10) The fundamental principle, that the prosecution must bear the burden of proving all elements of guilt beyond a reasonable doubt as a prerequisite to conviction, dates back to the eighteenth century (11) and constitutes a "bedrock" principle of American criminal procedure. (12) The Supreme Court explicitly adopted this standard as a constitutional requirement in the 1970 case In re Winship. (13) The Court held that the Due Process Clauses of the Fifth and Fourteenth Amendments require the protection of the accused against conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (14) Justice Frankfurter lauded the reasonable doubt rule as playing "a vital role in the American scheme of criminal procedure." (15) This quantum of proof is ubiquitous, and applies to every criminal trial. (16) Its significance is accentuated when contrasted with other procedural safeguards, such as the right to counsel or jury trial, which are not mandated in every criminal proceeding. (17)

   In light of the fact that the standard of proof currently constitutes a nonnegotiable, fixed, and indivisible feature of the criminal process, the prosecution and defense have only two polar options to choose from when bargaining to settle the criminal case. The first is to conduct a full trial, placing the entire burden of proof upon the prosecution. The second is to enter a plea bargain, whereby the prosecution gains full exemption from having to prove its incriminating case. In other words, due to the indivisible, nonnegotiable nature of the criminal standard of proof, the existing model of plea bargaining is based upon self-incrimination by the defendant. (18) Such self-incrimination can relate to all areas of the criminal "dispute" (as occurs in plea bargains of the sentence bargaining (19) type) or, alternatively, it can apply on certain portions only (as occurs in bargains of the charge bargaining (20) type). In this sense, under current plea bargains the prosecution obtains a vertical exemption from the requirements of proof: a full exemption vis-a-vis some component of the factual case against the defendant, or the case in its entirety.

   The proposed model would enhance the possibilities available to both parties by adding the option of a horizontal exemption from the requirements of proof. In accordance with this alternative option, the defendant would not make a full confession to any single part of the dispute, but would make it possible for the prosecution to reduce the standard of proof necessary for criminal conviction across the board. This new version of plea bargains would enable the prosecution to obtain partial exemption from the burden of proof for the entire dispute. To illustrate a possible implication of the proposed model, let us take a hypothetical rape case and assume significant disparities between the parties' subjective evaluations of its outcome in court. Let us assume the prosecution is of the opinion that under the "beyond a reasonable doubt" rule it has a 40% chance of obtaining a criminal conviction. Let us further assume that the prosecutor estimates that, if convicted, the defendant will be sentenced to twenty years in prison. The defendant, for his part, assesses his chances of being convicted completely differently. In his opinion, the probability of his being convicted under the criminal standard of proof is only 20%, due to an alibi claim he wishes to raise in court. He estimates that, if convicted, he will be sentenced to fifteen years in prison. In order to simplify the argument at this stage, I will focus only on the expected sanction, as perceived by each side, disregarding additional parameters such as the decline or increase in the marginal costs associated with each year of imprisonment over successive years. (21) I will also assume reasonable costs of trial. These issues will be discussed in detail later in the Article. (22)

   Under the abovementioned set of assumptions, the lack of congruity between each party's assessment (23) of the expected punishment can stand in the way of reaching a full plea bargain. (24) The prosecutor would offer the defendant a prison term of slightly less than eight years (the length of the expected sentence times the probability of conviction, minus the costs of trial) in exchange for his self-incriminating guilty plea. The defendant, for his part, would demand that, if convicted, he be sentenced to a maximum of slightly more than three years (the expected punishment, in his opinion, plus costs of trial). Thus, from the point of view of the prosecutor, the reduction in years demanded by the defendant, in exchange for his self-incriminating guilty plea, is too large. But from the defendant's point of view, the prosecution's demand of a full guilty plea is too high a price to pay for saving trial costs. Therefore, in the current situation of a nonnegotiable standard of proof ("beyond a reasonable doubt") the parties will most likely seek the trial option. For such cases, the proposed model can open the door to settlements that would benefit both parties. Let us now introduce a new variable, according to which the defendant can "exchange" concessions in the standard of proof for mitigation of the sanction in case of conviction. Let us further assume that, following the move to a civil standard of proof ("preponderance of the evidence"), the expected sentence envisioned by each of the parties changes as follows: The prosecution calculates that the move to a civil standard of proof will result in a 90% probability of conviction. This is because from the prosecution's point of view the difficulties of proof relate mostly to the elimination of any reasonable doubt. The defendant, for his part, believes that the move to a "preponderance of the evidence" standard of proof will not dramatically aggravate his situation because of the alibi claim that he is keeping under his hat. In his opinion, the likelihood of conviction through the move to a "civil" standard of proof will only increase by 5% (from a 20% to a 25% chance of conviction). In this scenario, the prosecution's proposal to request a ten-year sentence upon conviction, in exchange for moving to a "civil" standard of proof...