17. Given the unique role that plea bargaining plays in the US, and the serious concerns that have been raised about its effects there, the value of exporting a USstyle model of trial waiver system has been questioned.10 Even where the US has not provided specific technical support to encourage the use of trial waiver systems in other countries, it nonetheless often serves as an inspiration for such efforts.11 contest evidence and adduce additional evidence, and to appeal on many grounds. The test as to whether such a waiver is effectively made is reduced to a question of whether it is “voluntary” and “intelligent”.12 Certain procedural safeguards (for example, the right to information about charges and rights, and the right to a lawyer) are necessary to ensure that waivers are voluntarily and intelligently made. 18.  Due to the dominance of plea deals in US criminal proceedings, the relatively unregulated nature of the plea bargaining system, and its global influence, Fair Trials commenced its exploration of the impacts of trial waiver systems on human rights protection with a focus on the US. In November 2015, Fair Trials hosted a roundtable of US experts on criminal procedure to discuss plea bargaining in the US (the Washington roundtable). Experts at that meeting, and further conversations and research undertaken by Fair Trials, identified a number of challenges to human rights protection in the US posed by the operation of plea bargaining, each of which are explored below and which have informed Fair Trials’ understanding of the general threats to human rights and the rule of law that may be posed by trial waiver systems. 20. US experts at the Washington roundtable commented on the minimal attention to due process guarantees attending many plea deals in jurisdictions across the US, particularly in many misdemeanour and municipal cases. Defendants in these minor cases may in some jurisdictions negotiate and enter pleas without legal representation.13 Though the right to legal representation exists, in reality few defendants have access to a lawyer in the immediate period post-arrest, and prosecutors may offer plea deals before a defendant has the opportunity to engage one. Even those that do have legal representation may well be represented by overworked, under-resourced public defenders with minimal time to spend on each case. Defendants frequently accept plea deals, particularly in misdemeanour cases, in order to obtain release from pre-trial detention.14 It is worth noting in this context that money bail is the dominant form of pre-trial release in many US jurisdictions, meaning that defendants can be detained on the basis of their inability to pay bail, rather than for public safety reasons. A. Waivers of rights without sufficient procedural safeguards 19. The essence of US plea bargaining is a waiver of the rights (at least) to silence, against self-incrimination, to a trial, to put the government to its burden of proof, to 10. See, e.g., Alkon, C., “Plea Bargaining as a Legal Transplant: A Good Idea for Troubled Criminal Justice Systems?”, Transnational Law & Contemporary Problems, Vol. 19 (2010). Available at: http://scholarship.law.tamu.edu/cgi/viewcontent.cgi?article=1267&context=facscholar. See also McLeod, A., “Exporting U.S. Criminal Justice”, Yale Law & Policy Review, Vol. 29, Iss. 1, Article 3 (2010). Available at: http://digitalcommons.law.yale.edu/ylpr/vol29/iss1/3. 11. See, e.g., Jimeno-Bulnes, M., “American Criminal Procedure in a European Context”, Cardozo Journal of Int’l and Comp. Law, Vol. 21, No. 2 (2013), pp. 454–459. 12. Brady v. US, supra at n. 6. 13. Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts”, National Association of Criminal Defense Lawyers (Apr. 2009), pp. 14–18. Available at: https://www.nacdl.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=20808. This report found that more than 28% of jail inmates charged with misdemeanors reported having no lawyer. ‘In North Dakota, the observer noted that counsel was not appointed or present at arraignment for misdemeanour cases, despite the fact that most defendants pled guilty at that hearing and many were sentenced to jail time.’ While some were never informed of their right to a lawyer, others waived their right (knowingly or unwittingly). In some jurisdictions, defendants felt pressured to move forward without counsel because none were currently available to handle their case. 14. In the US, release from pre-trial detention is typically achieved through the posting of cash bail, which has the effect of making release impossible for many poor defendants. See Bibas, S. et al., “Improving Fairness and Addressing Racial Disparities in the Delaware Criminal Justice System”, Quattrone Center for the Fair Administration of Justice (Sept. 2015), which states, ‘Detained people regularly face the choice of fighting their case from jail or accepting a guilty plea and release, with a sentence of probation or time served. With jobs, homes and children on the line, most people will choose the latter, regardless of the strength or propriety of the case against them.’ Available at: http://courts.delaware.gov/supreme/docs/ttroneCenterMemorandumDERacialDisparities.pdf. See also “Bail Fail: Why the U.S. should end the practice of using money for bail”, Justice Policy institute (Sept. 2012). Available at: http://www.justicepolicy.org/uploads/justicepolicy/documents/ bailfail_executive_summary.pdf. See also Rakoff, “Why Innocent People Plead Guilty”, supra at n. 3. See also Kellough, G. and Wortley, S., “Remand for Plea: Bail Decisions and Plea Bargaining as Commensurate Decisions”, Brit. J. Criminol, Vol. 42(1) (2002), pp. 186–210. See also Heaton, P., Mayson, S. and Stevenson, M., “The downstream consequences of misdemeanor pre-trial detention”, Stanford Law Review, Vol. 69 (2017). Available at: https://www.law.upenn.edu/live/ files/5693-harriscountybail. See also Stevenson, M., “Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes”, University of Pennsylvania Law School (Working Paper) (2016). Available at: https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047#, finding that defendants unable to pay bail were 30% more likely to plead guilty. See also Johnson, G., “Cash Bail System can be Unjust, Penn Law Study Finds”, PennCurrent (Oct. 20, 2016). Available at: https:// penncurrent.upenn.edu/research/cash-bail-system-can-be-unjust-penn-law-study-finds, describing research (publication forthcoming) finding that that misdemeanour defendants in Harris County (Texas) who were unable to make bail were 25% more likely to plead guilty than those released on similar charges. 10.