The Disappearing Trial
92. In other jurisdictions such as China and Spain, lawyers
reported that prosecutors often offered a reduced
sentence in exchange for an accelerated procedure
just moments before trial, leaving the defendant
little time to consider it. In response to this practice,
the Madrid Bar has circulated amongst its lawyers a
sample request for additional time for consideration
of trial waiver offers (known either as “conformidad”
or “accelerated procedure” depending on the type of
mechanism used).
93. Some jurisdictions provide a more relaxed timeline
in which trial waivers can take place, for example by
delaying the trial waiver until after the pre-trial period
or by mandating timelines for filing documents
and setting down hearings necessary to ratify a trial
waiver (as in Argentina and Chile). Although this is
often simply a function of the procedure available
(often in abbreviated trial systems) rather than
an intended safeguard against abuse, in practice
it may allow defendants to better exercise their
rights before agreeing to a trial waiver. There were
some examples of timelines for trial waivers being
relaxed on a case-by-case basis where the interests
of justice demanded it. In Singapore, for example,
a judge responding to the survey indicated that
unrepresented defendants were provided additional
time so that they could seek legal advice prior to
deciding whether or not to accept trial waivers (known
as “plea bargaining”).
94.
It is worth noting, however, that in some systems,
such as in Germany, in which the trial waiver is not
entered until the (abbreviated) trial begins and where
sentence discounts are strictly limited, practitioners
sometimes complain that there are not sufficient time
and resource savings to incentivise optimum use of
the procedure. Similarly, the resource assessment
report produced in relation to guidelines in England
and Wales encouraging early trial waivers (known as
“guilty pleas”) considered that over-incentivising early
pleading, and under-incentivising later trial waivers,
may result in fewer defendants choosing to waive
their right to a trial later in the proceedings, as the
benefit to doing so later in the process would be so
minimal.100
100. “Consultation Stage Resource Assessment: Reduction in Sentence for a Guilty Plea”, the Sentencing Council, supra at n. 77, para. 2.2.
53.
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