A comparative look at plea bargaining in Australia, Canada, England, New Zealand, and the United States.

AuthorBrook, Carol A.
PositionAbstract through I. The Issues F. Public Debate, p. 1147-1190 - Plea Bargaining Regulation: The Next Criminal Procedure Frontier


In a world, where the vast majority of criminal cases are resolved through some means other than the popularly depicted criminal trial, it is fundamental to a comprehensive understanding of comparative criminal procedure to study and appreciate the different mechanisms for criminal case resolution in different nations. This Article developed through a series of conversations (and ultimately a panel discussion) between six international criminal justice professionals--practicing attorneys, scholars, and judges--regarding the nature and effects of plea bargaining (and its comparative substitutes) in their respective countries. Providing a comparative look at different mechanisms for criminal case resolution, this Article examines the applicable practices and procedures in the common law nations of Australia, Canada, England, New Zealand, and the United States.

TABLE OF CONTENTS INTRODUCTION I. THE ISSUES A. Defining Plea Bargaining B. Frequency of Use C. Procedural Safeguards D. Restrictions E. Roles F. Public Debate G. Policy H. Reforms I. Case Processing J. The Views of Defense Lawyers K. The Views of Judges L. Strategies to Induce Guilty Pleas M. Trends N. Ending Plea Bargaining? CONCLUSION INTRODUCTION

Criminal trials hold a prominent place in the Western popular culture and public imagination. In the United States, the trial's place would undoubtedly be marked by movies such as Presumed Innocent, To Kill a Mockingbird, and A Lesson Before Dying. Real life sensational criminal trials, such as those of O.J. Simpson, Casey Anthony, and Leopold and Loeb, captivated America. In Australia, those popular films are Breaker Morant and A Cry in the Dark, while in England it may be Witness for the Prosecution and the various Rumpole of the Bailey programs. Canadians viewed An Officer and a Murderer and Murder Unveiled, and many New Zealanders certainly bought tickets to see Beyond Reasonable Doubt and Heavenly Creatures. Their lists of "trials of the century" might include Pauline Parker and Juliet Hulme, Ruth Ellis and Gary Dodson, Paul Bernardo and Karla Homolka, and John Wayne Glover (New Zealand, England, Canada, and Australia, respectively). Yes, it is truly a fascination we all seem to have with the criminal trial.

In the real world of criminal justice, though, the trial has increasingly taken a distant back seat to the plea-bargained resolution of the matter. This Symposium looks at all sorts of issues in the United States related to such negotiated deals. In this Article, six experienced criminal justice professionals provide a comparative view of plea bargaining, laying out what it means in the five common law nations of Australia, Canada, England, New Zealand, and the United States.


Our approach identifies a number of key issues common to our five countries, with each of us reflecting on our own national approaches to these matters. Each of us has responded to the particular issues as laid out by our editor, Professor Marcus, who has then blended the responses together, as indicated below.

  1. Defining Plea Bargaining

    What is meant in your nation by the term "plea bargaining"?

    Each criminal justice professional participating in this project understands the common U.S. term "plea bargaining." As we can see, however, the prevailing terms in the nations do differ.

    Australia, Hon. Justice Fiannaca: In Australia, "plea bargaining" is the informal process by which a prosecuting authority and defense counsel negotiate the charge(s) on which the prosecution will proceed, and/or concessions that may be made by the prosecution in relation to sentencing, including the facts on which sentencing should proceed, with a view to arriving at a mutually acceptable agreement according to which the defendant will plead guilty. (1) It is not a process in which the court has any formal role. (2) The practice has been recognized in case law, if only to identify its limitations in affecting the final outcome of criminal proceedings and to delineate the roles of the parties and the court. (3)

    The label attached to the practice will depend on the jurisdiction. (4) The term "plea negotiations" (leading to "plea agreements") is preferred in some jurisdictions, including Western Australia, because of the "deal making" connotations associated with "bargaining" and the understanding we have of the formalized system in the United States.

    As the New South Wales Law Reform Commission (NSW LRC) explained in a 2013 consultation paper, "[m]ost Australian jurisdictions incorporate plea negotiations into prosecutorial practice, and the practice does not vary widely between jurisdictions." (5) I will focus below on the experience in Western Australia, because I am most familiar with that jurisdiction. (6) However, the general approach and rationale are common across the jurisdictions, and indeed, as will be seen below, all jurisdictions are bound by guiding principles elucidated by the High Court of Australia. (7)

    Plea negotiations in Australia can be part of a structured case conferencing system managed by a court, but generally they involve informal discussions and correspondence between the prosecution and defense. (8) They can occur at any time before the trial of the charges brought against a defendant, and even after a trial has commenced. (9) It may be, for instance, that the course of the evidence adduced by the prosecution during a trial gives rise to a reconsideration of the prospects of conviction on the charge being tried. This may prompt discussion about acceptance of a plea of guilty to a lesser offense of which the defendant could be convicted on the indictment. If such a plea were entered and accepted by the prosecution, the jury would be discharged without being required to return a verdict. (10)

    In all Australian jurisdictions, however, plea negotiations are encouraged, and sometimes mandated, to occur at an early stage in the management of a case. (11) The purpose of negotiations is to explore whether the case can be resolved without trial, and the sooner that happens in the conduct of the case, the greater the benefits to the defendant, any victim, and the State, if agreement is reached. (12)

    The process can be instigated by either the prosecution or the defense. (13) Generally, if an offer has not been forthcoming from the defense, it is part of the prosecutor's case management responsibilities to inquire whether the defendant intends to plead guilty to any offense. (14) It is an aspect of the exercise of prosecutorial discretion, which, in the context of prosecutions in the superior courts, (15) is first applied in deciding whether to indict for the offense(s) charged by the police, or for some other offense(s), or, indeed, for any offense at all. (16) Generally the prosecutor will indict for the offense that best reflects the criminality of the alleged conduct, as disclosed by the available evidence, and for which there are reasonable prospects of conviction. (17) There are other public interest considerations that may affect the decision. (18) Even where there are reasonable prospects of conviction, there remains scope to consider the strength of the case and other pragmatic considerations to determine whether the State should accept a plea to a lesser offense. (19) The assessment can be attended with considerable complexity, particularly in cases involving multiple defendants, where the relative strength of the case against each defendant and their relative culpability and preparedness to assist the authorities will have a bearing on any plea negotiations. (20)

    If there is a prospect that the accused would plead guilty to a lesser offense, or to some of the offenses originally charged, the question is whether a conviction for the lesser offense, or lesser number of offenses, would adequately reflect the defendant's criminality and serve the public interest, while giving regard to the benefits of resolving a prosecution without trial. (21) In many cases the answer will be in the negative, and there will be no scope for reducing the charge or the number of charges. It may be, however, that in those cases the defendant would be prepared to plead guilty if the prosecution makes certain factual concessions which tend to reduce the seriousness of the alleged offense, or if the prosecution agrees to make a submission that a particular sentencing option is open or that the offense falls within a certain level on the scale of seriousness for such offense. Of course, a plea agreement may involve any combination of the above considerations, and will usually include an agreed statement of the facts on which the court will be asked to sentence. (22)

    In relation to factual and sentencing concessions, care is taken not to engage in a "bargain," whereby the State might be seen to be offering a concession to induce a plea of guilty. The State may be asked to indicate its position on sentencing in the event that the defendant was to plead guilty. Ordinarily, such an indication would not be given in the absence of all relevant sentencing materials. Moreover, it should be no more than an indication of the State's submission consistent with principle and precedent, having regard for the agreed facts and giving weight to the mitigating value of the plea of guilty and any assistance the defendant may have provided to the authorities. (23) It will not bind the sentencing judge.

    In some jurisdictions, the indication of the prosecution's sentencing submission is regarded as part of the plea agreement, and there was a practice (considered to be consistent in Victoria with decisions of the Court of Appeal in that state) whereby the prosecution would make a submission to the court not only about the type of sentence, but about the appropriate range or quantum of imprisonment, where imprisonment was appropriate. (24) That practice now appears to be prohibited by the High Court decision of Barbaro v The Queen. (25)...

To continue reading

Request your trial