I was reading on Wikipedia that most countries with civil law and not common law do not have plea bargaining. A few of them were listed as having a limited form of it, but most apparently do not. This came as quite a shock to me. Since, last I read, 97% of court cases in the U.S. don’t go to trial, largely because people can agree to confess for a lesser sentence, how do those countries handle it?
Valete,
Vox Imperatoris
If you read on a bit in your own link, you’ll see that several civil systems are adopting limited forms of plea bargaining.
I suspect in large part many can spend more resources on criminal justice because they don’t have much more stringent controls on filing civil suits.
Yeah, but not very many, and, in some, a very limited number of cases. And unless you meant they **do **have more stringent requirements for filing suit, I don’t understand your second comment.
Valete,
Vox Imperatoris
Sorry, that’s what I meant.
what stringent controls are there in a civil system for filing civil suits?
Well, for one, lower crime rates than the US helps. (This is Norway I’m speaking of).
Secondly - more uses of fines for minor offences, where if the accused accepts the fine, no trial is needed.
Third - something called a conflict counsel (direct translation - probably not correct english :)) wherein the offender and his victim(s) meet under supervision of an official arbitrator to see if they can agree on a suitable way for the offender to make restitutions without involving a court of law.
Fourth - not exactly a plea bargain, but a “sentence discount” if the offender admits guilt. A trial is still needed, but with a confession it obviously doesn’t last that long.
That being said, we do have a serious backlog of cases, with people often waiting six months to a year to have their trials come up.
Japan handled it by eliminating juries and simply finding 99% of defendants guilty. Much faster that way.
Even though I knew that in the US, most cases ended up with a guilty plea and no real trial, I never wondered about the issue mentioned by the OP.
I would note that over here, there are no juries, except for serious crimes. Trials might be (WAG, I don’t know for sure) much quicker as a result.
(and criminal trials for things like rape or murder don’t represent any significant part of the total activity of courts)
The existence of the plea bargain process adds steps to the total process. Yes, it can stop at the bargain step, but the whole process is longer when things do go to trial.
Spain has a ridiculous backlog; just last month a friend was complaining that the government is coming up with “performance evaluations” and stuff like that, expecting that it will help lower the backlog, instead of, say… adding more judges or favoring even more the usage of no-need-for-trial fines. Note that the backlog wouldn’t magically go away if the possibility of bargains was added.
Fines that don’t need a trial if they’re accepted helps. I don’t have stats, but the US have a reputation of being the most suit-prone country in the world; I read in this board and in US newspapers about suits that would be thrown out (and the suitor fined for wasting the court’s time) in Spain. A trial for a falta (a minor crime) can last a few minutes: the problem is the waiting time before the trial.
There’s also many things which can be solved without a trial, through what we call “mediación.” A mediator is a court-appointed lawyer who helps both parts reach an agreement outside of court. It’s most common for civil situations, from suits to divorce.
Someone has decided that Spain should at some point move to a jury system. One of the disadvantages that have been found in tests is that those trials last a lot longer, because things that don’t need to be explained to a room full of lawyers do need to be explained to a jury. Only a handful of trials a year get juries so far and they’re “tests,” there’s no kind of trial that’s required by law to have one.
I’m just guessing, but it wouldn’t surprise me if many of the criminal “trials” in systems without formal plea bargaining are short, managed affairs involving the introduction of a confession and only a nominal defense. In other words, something that looks a lot like the allocution of a plea in the US system.
Maybe just a lot less people wind up charged and go to jail? That would account for certain crime metrics being lower (not all though) and lower incarceration rates in other countries.
That sounds pretty similar to the U.S. system of settlement, except that there’s no mediator. The person just drops the charge in return for money. You can only settle a civil case though; you can’t just buy off a rape or murder.
Valete,
Vox Imperatoris
I’m not sure what you’re trying to say here, but it seems to me that you are trying to say that civil litigation consumes inordinate resources in the United States. From what I gather from my contacts in various litigation fields, it’s criminal law that consumes the courts’ resources, particularly petty drug crime, three-strikes laws, and property seizures.
If what Nava refers to is similar to what exists in France : no, not really. The mediator tries to settle an issue, often minor, between two individuals : neighbours, landlord/tenant, etc… by helping them to find a solution without going to court. It can be as simple as informing them about the law and how it applies in their particular case, so that one of the parties will know that he doesn’t have a leg to stand on. Or the mediator can work on an agreement about the reimbursement of a debt, etc…
Settlements also exist.
My own limited observation, they simply don’t charge the person unless they are pretty damn confident of a guilty verdict.
The experience of countries that once had a jury system and then got rid of it (like Japan, India and Pakistan) is that while conviction rates go up, the number of people charged goes down. When its judges giving verdicts, they are rather displeased to have spent a week at a trial only to find that the defendant was not guilty. So the majority of cases go to trial only when the prosecutor is pretty damn certain that he will get a guilty verdict.
India and Pakistan still have plea bargaining.
It sounds like mediation. We have that here in the U.S. as well. Certain types of cases have these and it is always an option although the parties typically have to pay for it. Here, this really only applies to civil suits. Sometimes, a contract will have a mediation clause in it, although arbitration clauses are a lot more binding.
If done right by a good mediator, mediation can help settle a case where the parties are pretty stubborn.
Don’t Japanese prosecutors seldom file charges until the accused has confessed? I imagine being able to hold suspects in jail while they’re still being investigated helps speed confessions.
There usually are limits to the amount of time you can detain a person before you have to file charges. 4 days in England. 24 hours in S Asia.
Yeah, I kind of forgot about mediation in the U.S. Isn’t that also the basis for those daytime television “Judge Judy”-type shows, i.e. that the judge is acting as a mediator in place of a real trial?
Valete,
Vox Imperatoris