The Disappearing Trial
• Do defendants have the ability to appeal
convictions resulting from trial waivers where
procedural violations or new evidence make the
conviction unsafe?
• W here relevant, is monitoring taking place to
assess whether the human rights purpose for
which the trial waiver system was introduced (e.g.
reduction of pre-trial detention, moderation of
sentences, reduction of reliance on incarceration)
has been fulfilled? And are other efforts to fulfil
that human rights purpose (e.g. sentencing and
pre-trial detention reform, decriminalisation, and
diversion from the criminal justice system for
minor offences or certain vulnerable suspects)
continuing?
148. Monitoring and data collection
Jurisdictions with trial waiver systems should also
endeavour to collect key data in relation to the
operation of the system to help evaluate its overall
impact on justice outcomes and expenditure, most
of which, our research has indicated, is not currently
being systematically collected. States considering the
introduction of trial waiver systems or in the process
of adopting such systems should take the opportunity
to establish baselines of data along these lines prior to
implementation, so that the impact of the trial waiver
system can subsequently be measured. States should
gather the following data, where relevant according
to the different features of each trial waiver system:
• Percentage of convictions obtained through trial
waivers, disaggregated by type of charge and
demographics of the defendant.
• The percentage of defendants in pre-trial detention
who waive their right to trial, versus the percentage
of defendants not in pre-trial detention who do so.
• The percentage of defendants in pre-trial detention
who waive their right to trial, versus the percentage
of defendants in pre-trial detention who do not
waive their right to trial.
• Average sentences imposed on defendants who
waive their right to trial, versus those who proceed
to trial (disaggregated by offence charged).
• Number of case dismissals per year before the
introduction of a trial waiver system versus the
number of case dismissals following the introduction
of a trial waiver system.
• Data on patterns in charging behaviour by
prosecutors following the introduction of a trial
waiver system (for example, whether prosecutors
increase the number or severity of charges in order
to incentivise trial waivers).
• Rate of arrest and rate of charge/prosecution
following arrest prior to and following introduction
of a trial waiver system or changes to that system.
• Percentage or number of cases concluded through
a trial waiver in which an appeal against conviction is
later made, and the success rate of these appeals.
• Percentage of people who waive their right to a trial
who are subsequently exonerated.
• Percentage of defendants who waive their right to
a trial without legal representation.
• Average length of pre-trial detention in cases
resolved by trial waivers versus those which proceed
to trial.
Please get in contact with us if you have questions
or information to share, if you disagree with our
analysis or want to discuss further.
73.
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