The Disappearing Trial Learning from the United States’ experience 13.  Across the world, whenever Fair Trials engaged in conversations with practitioners about trial waiver systems, the example of the US was raised. Indeed the US is without a doubt the world leader in the use of plea bargaining (the term commonly accepted in the US), where guilty pleas account for 97% of convictions at the federal level,1 a percentage which has remained stable for the past two decades,2 after a period of growth in the 1980s and 1990s.3 From 1986 to 2006, the ratio of pleas to trials in the US nearly doubled.4 Given the immense scale of US criminal prosecutions (where about 12 million people are admitted to jail every year), the US unquestionably administers more trial waivers than any other country. As a result of this vast experience, the diversity of practice between states and local jurisdictions within the US, and due to the advanced state of academic criminology as a field of study in the US, the state of debate about the procedure is more developed in the US than in many other countries. For these reasons, Fair Trials began its investigation into trial waiver systems by examining the practice in the US. 14. In general, plea bargaining in the US5 is remarkably unregulated compared with the trial waiver systems found in other countries. It can be used in any type of criminal case, including those frequently exempted in other systems, such as death penalty cases6 and prosecutions against juveniles. Negotiation takes place directly between prosecutors and defenders out of court. There are no legal limits (though guidelines for prosecutorial policy and practice vary between jurisdictions within the US) on what can be negotiated between individual prosecutors and defendants: facts and charges may be altered, cooperation agreements may be struck, recommended sentences can be agreed between the parties, and terms and conditions of agreements and negotiations may differ widely between cases. 15.  As is typical of the US criminal system, with its adversarial and common law tradition, judges have a passive role in the negotiations and in some jurisdictions are prohibited from involvement in them. While judges may reject plea deals or alter sentences agreed upon by the parties, in practice this rarely happens. The relatively unregulated nature of plea bargaining in the US has led to a critical view of the practice amongst many legal professionals around the world, who often associate it with the overzealous prosecution, rights violations and the mass scale of criminal convictions considered by many to typify the US criminal justice system.7 16.  The US model is often seen as the ideological inspiration for adoption of trial waiver systems worldwide.8 The US has also worked actively to support other countries in developing trial waiver systems to pursue a range of rule of law and human rights objectives. This has been done through the provision of development funding and technical support for rule of law projects, often taking the form of US experts (e.g. prosecutors primarily through the Office of Overseas Prosecutorial Development and Training (OPDAT)) travelling to train foreign judges and lawyers in US models of adversarial practice, including trial waiver systems.9 1. United States Sentencing Commission’s 2016 Sourcebook of Federal Sentencing Statistics. Available at: http://www.ussc.gov/research/sourcebook-2016 2. Devers, L., “Plea and Charge Bargaining: Research Summary”, U.S. Department of Justice (Jan. 24, 2011). Available at: https://www.bja.gov/Publications/ PleaBargainingResearchSummary.pdf. 3. Rakoff, J. S., “Why Innocent People Plead Guilty”, The New York Review of Books (Nov. 20, 2014). Available at: http://www.nybooks.com/articles/2014/11/20/ why-innocent-people-plead-guilty/. 4. Oppel, R. Jr., “Sentencing Shift Gives New Leverage to Prosecutors”, The New York Times (Sept. 25, 2011). Available at: http://www.nytimes.com/2011/09/26/us/ tough-sentences-help-prosecutors-push-for-plea-bargains.html. 5. Please note that due to the fact that the US is a federal system, featuring 50 separate state legal systems, county and municipal practices, as well as a separate federal criminal system, there is substantial variation in law and practice governing plea bargains. The survey commissioned for this research paper covers only the US federal jurisdiction. However, trial waivers have been a feature of the system in all 50 states as well as the federal jurisdiction, and is responsible for well over 90% of all criminal adjudications across all US state and federal jurisdictions. See Oppel, “Sentencing Shift Gives New Leverage to Prosecutors”, supra at n. 4. 6. Brady v. US, 397 U.S. 742 (1970) established that deep sentencing discounts, including departure from the threat of the death penalty, did not invalidate or render involuntary a plea bargain. Available at: https://supreme.justia.com/cases/federal/us/397/742/case.html. 7. See, e.g., Tae-jong, K., “Rights agency opposes US-style plea bargaining”, The Korea Times, (Apr. 1, 2011). Available at: http://www.koreatimes.co.kr/www/news/ nation/2016/10/117_84321.html. See also Tolaj, K., “The Institutionalization of Plea Bargaining in Kosovo”, JURIST (Apr. 15, 2012), available at: http://www.jurist.org/ dateline/2012/04/kushtrim-tolaj-kosovo-plea-bargaining.php, citing a now-unavailable American Bar Association Legal Reform Index for Kosovo in 2009 that stated, ‘there is still considerable resistance [in Kosovo] to the use of plea bargaining from judges, prosecutors, and advocates.’ 8. Langer, M., “From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure”, from World Plea Bargaining: Consensual Procedures and the Avoidance of the Full Criminal Trial, Thaman, S. C., ed., Carolina Academic Press, Durham, NC (2010), pp. 3–80. Please note that Langer describes both the influence of the US system internationally, as well as the diverse forms the practice actually takes worldwide, many of which share little in common with the US model. 9. See, e.g., “INL Guide to Justice Sector Assistance”, US Department of State, Bureau of International Narcotics and Law Enforcement Affairs (Nov. 2013), p. 23, which identifies a project in Colombia to assist with the introduction of plea bargaining, and p. 29, in relation to a similar project in Thailand. Available at: https://www.state. gov/documents/organization/222048.pdf. 9.