Unbundling Criminal Trial Rights
The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong. Defendants can, and sometimes do, “unbundle” their jury trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure. This Essay explores what would happen if, once and for all, we eschewed the all-or-nothing framework and actually encouraged these “unbundled bargains.” The parties could then tailor court procedures by agreement. Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury. Or the parties might agree to submit a case to private arbitration. Would such a world be better or worse than the one we have now? This Essay takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining may plausibly outweigh the costs.