Oct 4, 2007

plea bargaining sample case: due process Neg

Value: Justice
Inherent in the resolution. (Come up with your own explanation.)

Criterion: Due Process
Since the resolution concerns a formal legal procedure "in the United States," we must consider justice in an American legal framework. "Due process" is the right guaranteed under the 14th amendment to the Constitution, and is the way we best ensure justice has been done. It isn't perfect, but no human system can be. Due process is approaches closest to the asymptote of justice. (If you use that, you'd better quote me.)

C1. Plea bargaining is its own form of due process.
In "Trial by Plea Bargain: Case Settlement as a Product of Recursive Decisionmaking," in Law & Society Review, Vol. 30, No. 2. (1996), Debra Emmelman writes,
Viewed as a component of recursive decisionmaking, plea
bargaining can be seen as including multiple episodes of negotiating behavior as well as a wide range of litigation proceedings. Perhaps most important, plea bargaining and trial can actually be seen to converge: not only are plea bargain negotiations "rehearsals of scenes that participants would be willing to portray before a jury" (Maynard 1984b:114), but pretrial and trial proceedings are oftentimes precursors for case settlement.
C2. Plea bargaining restores balance to a process that presumes innocence.
Emmelman again:
It is important to note here McConville's (1986) contention that trials do not guarantee that truth (or perhaps justice) will prevail. Insofar as adversarial procedures do not guarantee that the guilty will be convicted or the innocent set free, and because our judicial system holds that defendants should be given the benefit of doubt (i.e., presumed innocent until proven guilty), it seems this type of plea bargaining system can ensure justice as much or more than trials.
C3. Specifically, plea bargaining in exchange for testimony further expedites due process.
Not only does one defendant admit culpability and face sentencing, but promises to provide testimony to convict another, permitting either the facilitation of a trial or further incentive for the second defendant to enter a guilty plea.

This is a "trial balloon." Your comments and criticism are welcomed.

Update: In order to halt the spread of misinformation, I deleted a couple of my comments that repeated an incorrect statistic. It screws up the comment thread, but you can still get the gist.


Anonymous said...

riddle me this.

How can plea bargaining serve to expedite due process if it isn't giving the accused (guilty or innocent)due process.

They are given the option to admit guilt or not. If they admit guilt, they generally get a lesser sentence.

Truly, the only "due process" is to stand trial and be PROVEN guilty or not.

Anonymous said...

Eh, I know it's a bit out there but, so was Immanuel Kant.

I'm just brain storming ideas that pop into my frontal lobe... what can I say?

Jim Anderson said...

Brainstorming is just fine. Keep the ideas coming, even the bad ones. Something good is bound to come up.

Anonymous said...

What about using Mill's Harm Principle supporting Justice on Neg.?

LD novice said...

Where can I find the federal statistic about 95%?

Anonymous said...

i was just wondering because thie is a human system what about false testamony, just so the one can get lesser charges?
how is that fair to the accused defendent?

Anonymous said...

isnt that the topic, in exchange for testamony, so wouldn't non-testamony plea bargons not apply?
and you said he can disallow this as an honesty check, but many cases have been won on plea bargain testamonies, many including the mafia, how would the judge regulate what is a viable tastamony in comparison to another?

Jim Anderson said...

anonymous, if it stands in court, by any rational measure it's "honest" testimony. If you want to dispute that, you'd have to attack the legitimacy of the judicial system as a whole. I don't know if we want to go there.

Anonymous said...

the results of plea bargaining can inconsistent and sometimes arbitrary. wouldn't that jeopardize due process, since due process guarantees that a law shall not be unreasonable, arbitrary, or capricious.

Jim Anderson said...

Well, if "due process" is in fact such a guarantee, then possibly. We have to be careful, though, about describing the law in such absolute terms. Why not claim that even cases that go to trial are sometimes decided arbitrarily and capriciously?

Anonymous said...

if the systems presumes innocents then isnt the only true way to assign blame is to prove it in a court of law?

Anonymous said...

permitting either the facilitation of a trial or further incentive for the second defendant to enter a guilty plea.

what dose this exactly mean, i dont think i get it

Anonymous said...

Hi, I am a nubie at ld. I just saw this topic.
What exactly does it mean?
What is plea bargaining for a testimony?
I know plea bargaining and testimony seperately. But, what do they mean together?

Jim Anderson said...

Anonymous, in a plea bargain in exchange for testimony, a defendant pleads guilty to a lesser charge (or to a smaller number of charges, or both) and promises to provide testimony at trial to help convict another defendant. There's a fuller definition of the process here.

rag9100 said...

For C2: when it says basically that plea-bargaining will result in the punishment of more offenders because without it many are set free b/c of innocent until proven guilty...

However, this situation would not relevant because if they case was such that the offender was going to set free because he could not be proven guilty, he would not plea guilty at all anyway.

Anonymous said...

While all these are really good points for some one with a value criterion of duee process, what about some one with a value criterion of equality in an aff. case? I have the follwing points: Bribery, unreliable testimonies, and encouraging crimes. Would there be a way to link it all back to equality or would it be possible to think of a new value criterion using the above three contentions?

Jim Anderson said...


Bribery and unreliable testimony are corruptions--they lead to either innocents getting punished, or the guilty going free. Under any retributive scenario, either is unacceptable.

Encouraging crimes is a different problem--I'm not sure if it's immediately linked to a criterion of retributive punishment. It's more utilitarian (forward-thinking) in its merits.

Johnny said...

First of all, thanks for the thread. It helps everybody out.

How would you argue against due process, though? I could see maybe arguing that due process isn't necessarily just, but is there any substantive arguments that can be made persuasively against due process???