By Brandon L. Garrett, William E. Crozier, Kevin Dahaghi, Elizabeth J. Gifford, Catherine Grodensky, Adele Quigley-McBride & Jennifer Teitcher

Where the vast majority of criminal cases are resolved without a trial, the criminal system in the United States is a system of pleas, not trials. While a plea, its terms, and the resulting sentence entered in court are all public, how the outcome was negotiated remains almost entirely nonpublic. Prosecutors may resolve cases for reasons that are benign, thoughtful, and well-calibrated—or discriminatory, self-interested, and arbitrary—with very little oversight or sunlight. For years, academics and policymakers have called for meaningful data to fill this crucial void. In this Article, we open the “black box” of prosecutorial discretion by tasking prosecutors with documenting detailed case-level information concerning plea bargaining. This is not a hypothetical or conceptual exercise, but rather the product of theory, design, and implementation work by an interdisciplinary team. We collected systematic data from two prosecutors’ offices for one year. The Article describes how the data-collection methodology was designed, piloted, and implemented, as well as the insights that have been generated. Our system can be readily adapted to other offices and jurisdictions. We conclude by discussing how documenting the plea-bargaining process can affect prosecution practices, defense lawyering, judicial oversight, and public policy, its constitutional and ethical implications, and its broader implications for democratic legitimacy. An open-prosecution approach is feasible and, for the first time in the United States, it is in operation.

75 STAN. L.REV. 1365 (2023)

Edited by Maureen Mulholland and Brian Pullan with Anne Pullan  

This book is about trials, civil and criminal, ecclesiastical and secular, in England and Europe between the thirteenth and the seventeenth centuries. The opening chapter provides a conceptual framework both for this book and for its companion volume on the eighteenth, nineteenth and twentieth centuries. Subsequent chapters provide a rounded view of trials conducted according to different procedures within contrasting legal systems, including English common law and Roman canon law. They consider the judges and juries and the amateur and professional advisers involved in legal processes as well as the offenders brought before the courts, with the reasons for prosecuting them and the defences they put forward. The cases examined range from a fourteenth century cause-célèbre, the attempted trial of Pope Boniface VIII for heresy, to investigations of obscure people for sexual and religious offences in the city states of Geneva and Venice. Technical terms have been cut to a minimum to ensure accessibility and appeal to lawyers, social, political and legal historians, undergraduate and postgraduates as well as general readers interested in the development of the trial through time. 

Manchester, UK: Manchester University Press, 2003. 197p.

Edited by R.A. Melikan

How does the trial function? What are the tools, in terms of legal principle, scientific knowledge, social norms, and political practice, which underpin this most important decision-making process? This collection of nine essays by an international group of scholars explores these crucial questions. Focusing both on English criminal, military, and parliamentary trials, and upon national and international trials for war crimes, this book illuminates the diverse forces that have shaped trials during the modern era. The contributors approach their subject from a variety of perspectives - legal history, social history, political history, sociology, and international law. With an appreciation and understanding of the relevant legal procedures, they address wider issues of psychology, gender, bureaucracy, and international relations within the adjudicative setting. Their inter-disciplinary approach imparts to this book a breadth not usually seen in studies of the courtroom. Scholars and students of modern British history, political science, and international law, as well as legal history, will find these essays stimulating and informative. 

Manchester, UK: Manchester University Press, 2003. 207p.