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Introduction1

Chapter 1 Traditions of Plea Bargaining:The United States7

Introduction7

History of Plea Bargaining in the United States8

Law Related to Plea Bargaining in the United States10

Brady v. United States10

Notes and Questions16

Santobello v. New York18

Notes and Questions21

Practice of Plea Bargaining in the United States22

Participants22

Notes and Questions24

Timing28

Subject Matter28

Cooperation Agreements30

Ad Hoc Plea Bargaining35

Waiving Rights35

Package Deals36

Notes and Questions36

Conditions for Validity of a Guilty Plea37

Voluntariness and Knowledge38

Factual Basis41

Notes and Questions42

Withdrawal of a Guilty Plea and Breach of a Plea Agreement44

Withdrawal44

Breach44

Notes and Questions49

Arguments for and Against Plea Bargaining in the United States50

Notes and Questions53

Hypotheticals62

Plea Bargaining in a Drug Trafficking Case in the United States63

Notes and Questions68

Plea Bargaining in a Homicide Case in the United States71

Notes and Questions71

Chapter 2 Informal Bargaining: Germany73

Introduction73

History of Plea Bargaining in Germany74

Conflict Between Plea Bargaining and the Inquisitorial Tradition75

German Criminal Procedure Code78

Law Related to Plea Bargaining in Germany79

German Criminal Procedure Code80

German Federal Supreme Court Decision,March 3, 2005, GSSt 1/0484

Notes and Questions97

Turner, Judicial Participation in Plea Negotiations98

Federal Ministry of Justice, Draft Proposal to Amend the Code of Criminal Procedure100

Notes and Questions101

Weigend, The Decay of the Inquisitorial Ideal102

Practice of Plea Bargaining in Germany104

Participants104

Timing105

Subject Matter105

Waiving Rights108

Ad Hoc Plea Bargaining109

Cooperation Agreements109

Notes and Questions112

Evaluating the German Plea Bargaining Regime113

Turner, Judicial Participation in Plea Negotiations113

Notes and Questions120

Dubber, American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure121

Weigend, The Decay of the Inquisitorial Ideal122

Notes and Questions126

Comparing Plea Bargaining in the United States and Germany128

Hypotheticals130

Plea Bargaining in a Drug Trafficking Case in Germany130

Notes and Questions133

Plea Bargaining in a Homicide Case in Germany134

Notes and Questions136

Chapter 3 Introducing Plea Bargaining as Part of Comprehensive Legal Reform: Russia and Bulgaria137

Introduction137

Russia141

History of Plea Bargaining in Russia141

Law and Practice of Plea Bargaining in Russia143

Reception of Plea Bargaining in Russia146

Notes and Questions147

Bulgaria149

History of Plea Bargaining in Bulgaria149

Law and Practice of Plea Bargaining in Bulgaria151

Reception of Plea Bargaining in Bulgaria156

Notes and Questions158

Diffusion of Plea Bargaining in Eastern Europe158

Notes and Questions161

Comparing Plea Bargaining in Bulgaria and Russia162

Hypotheticals164

Plea Bargaining in a Drug Case in Bulgaria164

Notes and Questions166

Plea Bargaining in a Homicide Case in Bulgaria166

Notes and Questions168

Chapter 4 Alternatives to Plea Bargaining:China and Japan171

Introduction171

Alternatives to Plea Bargaining in Japan172

The Demand for More Efficient Process in Japan174

Conflict Between Plea Bargaining and Japanese Criminal Procedure178

Enomoto v. Japan182

Notes and Questions184

Alternatives to Plea Bargaining in Japan184

Discretionary Prosecution185

Summary Proceedings186

Pretrial Arrangement Procedure187

Speedy Trial Procedure188

Confession and Cooperation with the Court189

Evaluation of the Japanese Alternatives to Plea Bargaining191

Notes and Questions194

Japan as a Counter-Example to the Global Spread of Plea Bargaining195

Alternatives to Plea Bargaining in China198

Notes and Questions203

Alternatives to Plea Bargaining in China and Japan205

Hypotheticals207

Alternatives to Plea Bargaining in a Drug Case in Japan207

Notes and Questions207

Alternatives to Plea Bargaining in a Homicide Case in Japan210

Notes and Questions211

Chapter 5 Plea Bargaining at International Criminal Courts213

Introduction213

History of Plea Bargaining at International Criminal Courts214

Law Related to Plea Bargaining at International Criminal Courts217

Prosecutor v. Erdemovi?219

Notes and Questions229

ICTY Rules of Procedure and Evidence230

ICTR Rules of Procedure and Evidence231

Rome Statute of the International Criminal Court232

ICC Rules of Procedure and Evidence233

Notes and Questions234

Practice of Plea Bargaining at International Criminal Courts234

Participants234

Timing236

Subject Matter236

Cooperation Agreements238

Notes and Questions239

Conditions for Validity of a Guilty Plea240

Voluntariness and Knowledge240

Lack of Equivocation and Factual Basis242

Withdrawal of a Guilty Plea and Breach of a Plea Agreement242

Arguments For and Against Plea Bargaining at International Criminal Courts244

Prosecutor v. Momir Nikoli?246

Notes and Questions251

Prosecutor v. Deronji?252

Notes and Questions258

Plea Bargaining in International Crimes Cases at "Hybrid" Courts259

Notes and Questions261

The Future of Plea Bargaining in International Crimes Cases262

Dama?ka, Negotiated Justice in International Criminal Courts263

Notes and Questions264

Comparing Plea Bargaining at the International Criminal Courts265

Hypotheticals266

Guilty Plea, Remorse, and Cooperation in a Genocide Case at the ICTR266

Notes and Questions268

Guilty Plea in a War Crimes/Crimes Against Humanity Case at the ICTY268

Notes and Questions269

Conclusion The Global Future of Plea Bargaining271

Index277