Plea Barganing Across Borders: Criminal Procedure

by Turner, Jenia I.

• ISBN13: 9780735575714
• ISBN10: 0735575711
• Format: Paperback
• Copyright: 2009-10-01
• Publisher: Wolters Kluwer Law and Business

Summary

Plea Bargaining Across Borders: Criminal Procedure can be used alongside any criminal procedure casebook to explore how criminal defendants are treated under different national and international jurisdictions. Jenia Iontcheva Turner employs realistic hypothetical scenarios to illustrate how different attitudes toward plea bargaining and sentencing can produce a range of outcomes across jurisdictions. Organized and presented for students who may not be familiar with comparative and international law, Plea Bargaining Across Borders: Criminal Procedure features: coverage of three types of jurisdictions those that allow plea bargaining in all cases (e.g., the United States and international criminal courts) those that allow plea bargaining only for minor crimes (e.g., Germany, Bulgaria) those that do not formally allow plea bargaining under any circumstances (e.g., Japan), but that employ practices that are functionally similar to plea bargaining a consistent internal chapter structure: a brief history of plea bargaining in each jurisdiction relevant primary sources of law analysis that focuses on the participants, timing, and setting of negotiations and on the subject matter of plea agreements discussion of the legal conditions for a valid guilty plea discussion of the law regarding withdrawal of a guilty plea and breach of a plea agreement scholarly commentary supporting or criticizing plea bargaining succinct overview charts that show country comparisons at a glance hypothetical drug trafficking and homicide scenarios realistic hypothetical scenarios that depict plea bargaining in different kinds of criminal cases and require students to apply the laws of different jurisdictions to similar facts a unique combination of primary and secondary source materials, including interviews with practitioners and scholarly commentary Questions and Notes that fuel class discussion discussion of plea bargaining at international criminal courts, such as the international criminal tribunals for former Yugoslavia and Rwanda and the International Criminal Court free-standing chapters that allow instructors to tailor the coverage to their own teaching objectives Professor's Notes that offer guidance for teaching, link the hypotheticals to core course content, and reference additional materials addressing specific countries and comparative and international criminal procedure generally Incorporating materials common to the leading criminal procedure casebooks, Plea Bargaining Across Borders can be easily adapted to your criminal procedure syllabus. The entire book may be assigned over four or five classes, or single chapters may be inserted into the semester to introduce a transnational perspective to your course.

Author Biography

Jenia I. Turner, Author, is Associate Professor of Low at the Southern Methodist University Dedman School of Law, where she teaches courses related to criminal procedure, international criminal law, and international organizations. Hiram E. Chodosh, Series Editor, is Dean and Professor of Law at the University of Utah, S.J. Quinney College of Law, where he leads the Global Justice Project and teaches in its global justice think tank.

Table of Contents

Acknowledgments	p. xv
Introduction	p. 1
Traditions of Plea Bargaining: The United States	p. 7
Introduction	p. 7
History of Plea Bargaining in the United States	p. 8
Law Related to Plea Bargaining in the United States	p. 10
Brady v. United States	p. 10
Notes and Questions	p. 16
Santobello v. New York	p. 18
Notes and Questions	p. 21
Practice of Plea Bargaining in the United States	p. 22
Participants	p. 22
Notes and Questions	p. 24
Timing	p. 28
Subject Matter	p. 28
Cooperation Agreements	p. 30
Ad Hoc Plea Bargaining	p. 35
Waiving Rights	p. 35
Package Deals	p. 36
Notes and Questions	p. 36
Conditions for Validity of a Guilty Plea	p. 37
Voluntariness and Knowledge	p. 38
Factual Basis	p. 41
Notes and Questions	p. 42
Withdrawal of a Guilty Plea and Breach of a Plea Agreement	p. 44
Withdrawal	p. 44
Breach	p. 44
Notes and Questions	p. 49
Arguments for and Against Plea Bargaining in the United States	p. 50
Notes and Questions	p. 53
Hypotheticals	p. 62
Plea Bargaining in a Drug Trafficking Case in the United States	p. 63
Notes and Questions	p. 68
Plea Bargaining in a Homicide Case in the United States	p. 71
Notes and Questions	p. 71
Informal Bargaining: Germany	p. 73
Introduction	p. 73
History of Plea Bargaining in Germany	p. 74
Conflict Between Plea Bargaining and the Inquisitorial Tradition	p. 75
German Criminal Procedure Code	p. 78
Law Related to Plea Bargaining in Germany	p. 79
German Criminal Procedure Code	p. 80
German Federal Supreme Court Decision, March 3, 2005, GSSt 1/04	p. 84
Notes and Questions	p. 97
Turner, Judicial Participation in Plea Negotiations	p. 98
Federal Ministry of Justice, Draft Proposal to Amend the Code of Criminal Procedure	p. 100
Notes and Questions	p. 101
Weigend, The Decay of the Inquisitorial Ideal	p. 102
Practice of Plea Bargaining in Germany	p. 104
Participants	p. 104
Timing	p. 105
Subject Matter	p. 105
Waiving Rights	p. 108
Ad Hoc Plea Bargaining	p. 109
Cooperation Agreements	p. 109
Notes and Questions	p. 112
Evaluating the German Plea Bargaining Regime	p. 113
Turner, Judicial Participation in Plea Negotiations	p. 113
Notes and Questions	p. 120
Dubber, American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure	p. 121
Weigend, The Decay of the Inquisitorial Ideal	p. 122
Notes and Questions	p. 126
Comparing Plea Bargaining in the United States and Germany	p. 128
Hypotheticals	p. 130
Plea Bargaining in a Drug Trafficking Case in Germany	p. 130
Notes and Questions	p. 133
Plea Bargaining in a Homicide Case in Germany	p. 134
Notes and Questions	p. 136
Introducing Plea Bargaining as Part of Comprehensive Legal Reform: Russia and Bulgaria	p. 137
Introduction	p. 137
Russia	p. 141
History of Plea Bargaining in Russia	p. 141
Law and Practice of Plea Bargaining in Russia	p. 143
Reception of Plea Bargaining in Russia	p. 146
Notes and Questions	p. 147
Bulgaria	p. 149
History of Plea Bargaining in Bulgaria	p. 149
Law and Practice of Plea Bargaining in Bulgaria	p. 151
Reception of Plea Bargaining in Bulgaria	p. 156
Notes and Questions	p. 158
Diffusion of Plea Bargaining in Eastern Europe	p. 158
Notes and Questions	p. 161
Comparing Plea Bargaining in Bulgaria and Russia	p. 162
Hypotheticals	p. 164
Plea Bargaining in a Drug Case in Bulgaria	p. 164
Notes and Questions	p. 166
Plea Bargaining in a Homicide Case in Bulgaria	p. 166
Notes and Questions	p. 168
Alternatives to Plea Bargaining: China and Japan	p. 171
Introduction	p. 171
Alternatives to Plea Bargaining in Japan	p. 172
The Demand for More Efficient Process in Japan	p. 174
Conflict Between Plea Bargaining and Japanese Criminal Procedure	p. 178
Enomoto v. Japan	p. 182
Notes and Questions	p. 184
Alternatives to Plea Bargaining in Japan	p. 184
Discretionary Prosecution	p. 185
Surnmary Proceedings	p. 186
Pretrial Arrangement Procedure	p. 187
Speedy Trial Procedure	p. 188
Confession and Cooperation with the Court	p. 189
Evaluation of the Japanese Alternatives to Plea Bargaining	p. 191
Notes and Questions	p. 194
Japan as a Counter-Example to the Global Spread of Plea Bargaining	p. 195
Alternatives to Plea Bargaining in China	p. 198
Notes and Questions	p. 203
Alternatives to Plea Bargaining in China and Japan	p. 205
Hypotheticals	p. 207
Alternatives to Plea Bargaining in a Drug Case in Japan	p. 207
Notes and Questions	p. 207
Alternatives to Plea Bargaining in a Homicide Case in Japan	p. 210
Notes and Questions	p. 211
Plea Bargaining at International Criminal Courts	p. 213
Introduction	p. 213
History of Plea Bargaining at International Criminal Courts	p. 214
Law Related to Plea Bargaining at International Criminal Courts	p. 217
Prosecutor v. Erdemović	p. 219
Notes and Questions	p. 229
ICTY Rules of Procedure and Evidence	p. 230
ICTR Rules of Procedure and Evidence	p. 231
Rome Statute of the International Criminal Court	p. 232
ICC Rules of Procedure and Evidence	p. 233
Notes and Questions	p. 234
Practice of Plea Bargaining at International Criminal Courts	p. 234
Participants	p. 234
Timing	p. 236
Subject Matter	p. 236
Cooperation Agreements	p. 238
Notes and Questions	p. 239
Conditions for Validity of a Guilty Plea	p. 240
Voluntariness and Knowledge	p. 240
Lack of Equivocation and Factual Basis	p. 242
Withdrawal of a Guilty Plea and Breach of a Plea Agreement	p. 242
Arguments For and Against Plea Bargaining at International Criminal Courts	p. 244
Prosecutor v. Momir Nikolić	p. 246
Notes and Questions	p. 251
Prosecutor v. Deronjić	p. 252
Notes and Questions	p. 258
Plea Bargaining in International Crimes Cases at "Hybrid" Courts	p. 259
Notes and Questions	p. 261
The Future of Plea Bargaining in International Crimes Cases	p. 262
Dama¿ka, Negotiated Justice in International Criminal Courts	p. 263
Notes and Questions	p. 264
Comparing Plea Bargaining at the International Criminal Courts	p. 265
Hypotheticals	p. 266
Guilty Plea, Remorse, and Cooperation in a Genocide Case at the ICTR	p. 266
Notes and Questions	p. 268
Guilty Plea in a War Crimes/Crimes Against Humanity Case at the ICTY	p. 268
Notes and Questions	p. 269
Conclusion The Global Future of Plea Bargaining	p. 271
Index	p. 277
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