The Disappearing Trial D. Lack of oversight of police and prosecutorial conduct 31.  The procedural guarantees of the trial do not only protect individual rights; they also provide one of the few opportunities for judicial and public oversight of police and prosecutorial practices. Where police have engaged in prohibited activity, including unlawful stop, search, arrest and seizure, fabrication of evidence, torture, inhuman or degrading treatment or other rights violations, the primary legal remedy in the US is exclusion of evidence tainted by the unlawful act. When a trial does not occur, these abuses may well not come to light, and are much less likely to be remedied. Furthermore, evidence of mistreatment made public through criminal trials can form the basis of collateral claims for compensation of victims or prosecution or civil liability of abusers. These, too, may become more difficult to prove without the public airing of evidence and trial record. In extreme cases, plea deals may be used to “cleanse” or “launder” cases too tainted by torture and other human rights abuses to take to trial.43 In less extreme cases, which are much more voluminous and systematic, plea deals may be used to win convictions in cases that may otherwise have ended in dismissal or acquittal due to procedural rights violations or lack of evidence.44 32.  Besides examples of outright rights violations, such as those illustrated by the case of Mahdi Hashi, experts at the Washington roundtable expressed concern that a diminishing incidence of trials may be having a deleterious effect on the overall quality of investigations. Investigators do not have to be concerned that the evidence and the procedures undertaken would be thoroughly tested at trial.45 These concerns have been borne out in repeated scandals in which defendants have accepted plea deals in relation to charges supported by evidence that has gone untested by prosecuting authorities. For example, in Houston, Texas, hundreds of convictions following plea deals in drug cases have been questioned in recent years, following the discovery that they were based on false positive results of unreliable roadside drug tests considered sufficient to establish probable cause to arrest, but not accurate enough to be used as evidence at trial due to high error rates.46 Despite their innocence, the nowexonerated defendants all accepted plea deals before the evidence was properly tested.47 43. United States v. Ali Yasin Ahmed, Madhi Hashi, Mohamed Yusuf, No. 12 Cr. 661, 2012 WL 6721134 (E.D.N.Y. Nov. 15, 2012); 18 U.S.C. § 2339B (2012). 44. Federal data from the US documents a reduction in the percentage of cases that are dismissed by prosecutors, as well as those ending in acquittals. See Oppel, “Sentencing Shift Gives New Leverage to Prosecutors”, supra at n. 4. 45. This concern is also expressed in Fellner, “An Offer You Can’t Refuse”, supra at n. 34, which states that ‘Human Rights Watch believes (the) historically low rate of trials (referring to the 3% of federal drug cases that are tried rather than pled out) reflects and unbalanced and unhealthy criminal justice system.’ 46. See, e.g., Gabrielson, R. and Sanders, T., “Busted”, ProPublica/The New York Times (Jul. 7, 2016). Available at: https://www.propublica.org/article/commonroadside-drug-test-routinely-produces-false-positives. The article also notes that plea deals are accepted by prosecutors on the basis of similar unreliable roadside drug tests in a number of other states and jurisdictions. These cases and the work of the Harris County Conviction Integrity Unit are also discussed in the National Registry of Exonerations report, supra at n. 31. 47. See also Hollandsworth, S., “Snow Job”, Texas Monthly (Apr. 2002), available at: http://www.texasmonthly.com/articles/snow-job/, for more detail on the so-called Texas Sheetrock Cases. This involved 53 people who were prosecuted for cocaine trafficking on a tip from an informant as part of his own plea deal. Prosecutors pressured the defendants to plead guilty before the drug tests came back from the lab, which took 6-8 weeks, and many of them did, some of whom were then deported to Mexico. Two defendants demanded the seized material be tested, after which it turned out the “cocaine” was actually Sheetrock after all, but it was too late for the co-defendants who had already been convicted and deported. 15.