The courtroom. Few defendants spend more than a couple hours here before being transferred to prison. Fewer still ever see a jury.

Plea bargaining has all but eliminated the jury trial. Defendants plead guilty because the cost of trial is simply too great. The Constitution guarantees a right to a trial before a jury, but leniency for pleas and penalties for trials cause most people charged with a crime to plead guilty. 

Trial bargaining is the practice of using a system geared toward guilty pleas to generate trials. Guilty pleas are waivers. The right to a jury, the right to confront witnesses, the right to testify, the right not to testify. Any defendant pleading guilty will waive all these rights and more. 

Trial bargaining leverages the waiver mechanism in a more nuanced way. Rather than waiving all trial rights, the defendant waives limited trial rights. In exchange, the prosecutor offers conditional leniency in the event that the defendant is convicted. This practice allows for experimentation with novel forms of adjudication, and it offers the possibility of reinvigorating the jury trial by making trials less costly to defendants. 

For a more detailed explanation and analysis, see: 

Trial Bargaining

Counsel's Role In Bargaining For Trials


For a critical analysis of trial bargaining, see:

Raymond J. Mckoski, Betting Against the (Big) house: Bargaining Away Trial Rights

Background photo taken by Phil Roeder (cropped and used with his permission).