Introduction 1
Chapter 1 Traditions of Plea Bargaining:The United States 7
Introduction 7
History of Plea Bargaining in the United States 8
Law Related to Plea Bargaining in the United States 10
Brady v. United States 10
Notes and Questions 16
Santobello v. New York 18
Notes and Questions 21
Practice of Plea Bargaining in the United States 22
Participants 22
Notes and Questions 24
Timing 28
Subject Matter 28
Cooperation Agreements 30
Ad Hoc Plea Bargaining 35
Waiving Rights 35
Package Deals 36
Notes and Questions 36
Conditions for Validity of a Guilty Plea 37
Voluntariness and Knowledge 38
Factual Basis 41
Notes and Questions 42
Withdrawal of a Guilty Plea and Breach of a Plea Agreement 44
Withdrawal 44
Breach 44
Notes and Questions 49
Arguments for and Against Plea Bargaining in the United States 50
Notes and Questions 53
Hypotheticals 62
Plea Bargaining in a Drug Trafficking Case in the United States 63
Notes and Questions 68
Plea Bargaining in a Homicide Case in the United States 71
Notes and Questions 71
Chapter 2 Informal Bargaining: Germany 73
Introduction 73
History of Plea Bargaining in Germany 74
Conflict Between Plea Bargaining and the Inquisitorial Tradition 75
German Criminal Procedure Code 78
Law Related to Plea Bargaining in Germany 79
German Criminal Procedure Code 80
German Federal Supreme Court Decision,March 3, 2005, GSSt 1/04 84
Notes and Questions 97
Turner, Judicial Participation in Plea Negotiations 98
Federal Ministry of Justice, Draft Proposal to Amend the Code of Criminal Procedure 100
Notes and Questions 101
Weigend, The Decay of the Inquisitorial Ideal 102
Practice of Plea Bargaining in Germany 104
Participants 104
Timing 105
Subject Matter 105
Waiving Rights 108
Ad Hoc Plea Bargaining 109
Cooperation Agreements 109
Notes and Questions 112
Evaluating the German Plea Bargaining Regime 113
Turner, Judicial Participation in Plea Negotiations 113
Notes and Questions 120
Dubber, American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure 121
Weigend, The Decay of the Inquisitorial Ideal 122
Notes and Questions 126
Comparing Plea Bargaining in the United States and Germany 128
Hypotheticals 130
Plea Bargaining in a Drug Trafficking Case in Germany 130
Notes and Questions 133
Plea Bargaining in a Homicide Case in Germany 134
Notes and Questions 136
Chapter 3 Introducing Plea Bargaining as Part of Comprehensive Legal Reform: Russia and Bulgaria 137
Introduction 137
Russia 141
History of Plea Bargaining in Russia 141
Law and Practice of Plea Bargaining in Russia 143
Reception of Plea Bargaining in Russia 146
Notes and Questions 147
Bulgaria 149
History of Plea Bargaining in Bulgaria 149
Law and Practice of Plea Bargaining in Bulgaria 151
Reception of Plea Bargaining in Bulgaria 156
Notes and Questions 158
Diffusion of Plea Bargaining in Eastern Europe 158
Notes and Questions 161
Comparing Plea Bargaining in Bulgaria and Russia 162
Hypotheticals 164
Plea Bargaining in a Drug Case in Bulgaria 164
Notes and Questions 166
Plea Bargaining in a Homicide Case in Bulgaria 166
Notes and Questions 168
Chapter 4 Alternatives to Plea Bargaining:China and Japan 171
Introduction 171
Alternatives to Plea Bargaining in Japan 172
The Demand for More Efficient Process in Japan 174
Conflict Between Plea Bargaining and Japanese Criminal Procedure 178
Enomoto v. Japan 182
Notes and Questions 184
Alternatives to Plea Bargaining in Japan 184
Discretionary Prosecution 185
Summary Proceedings 186
Pretrial Arrangement Procedure 187
Speedy Trial Procedure 188
Confession and Cooperation with the Court 189
Evaluation of the Japanese Alternatives to Plea Bargaining 191
Notes and Questions 194
Japan as a Counter-Example to the Global Spread of Plea Bargaining 195
Alternatives to Plea Bargaining in China 198
Notes and Questions 203
Alternatives to Plea Bargaining in China and Japan 205
Hypotheticals 207
Alternatives to Plea Bargaining in a Drug Case in Japan 207
Notes and Questions 207
Alternatives to Plea Bargaining in a Homicide Case in Japan 210
Notes and Questions 211
Chapter 5 Plea Bargaining at International Criminal Courts 213
Introduction 213
History of Plea Bargaining at International Criminal Courts 214
Law Related to Plea Bargaining at International Criminal Courts 217
Prosecutor v. Erdemovi? 219
Notes and Questions 229
ICTY Rules of Procedure and Evidence 230
ICTR Rules of Procedure and Evidence 231
Rome Statute of the International Criminal Court 232
ICC Rules of Procedure and Evidence 233
Notes and Questions 234
Practice of Plea Bargaining at International Criminal Courts 234
Participants 234
Timing 236
Subject Matter 236
Cooperation Agreements 238
Notes and Questions 239
Conditions for Validity of a Guilty Plea 240
Voluntariness and Knowledge 240
Lack of Equivocation and Factual Basis 242
Withdrawal of a Guilty Plea and Breach of a Plea Agreement 242
Arguments For and Against Plea Bargaining at International Criminal Courts 244
Prosecutor v. Momir Nikoli? 246
Notes and Questions 251
Prosecutor v. Deronji? 252
Notes and Questions 258
Plea Bargaining in International Crimes Cases at "Hybrid" Courts 259
Notes and Questions 261
The Future of Plea Bargaining in International Crimes Cases 262
Dama?ka, Negotiated Justice in International Criminal Courts 263
Notes and Questions 264
Comparing Plea Bargaining at the International Criminal Courts 265
Hypotheticals 266
Guilty Plea, Remorse, and Cooperation in a Genocide Case at the ICTR 266
Notes and Questions 268
Guilty Plea in a War Crimes/Crimes Against Humanity Case at the ICTY 268
Notes and Questions 269
Conclusion The Global Future of Plea Bargaining 271
Index 277