The boundaries of plea bargaining: Negotiating the standard of proof

This Article explores the boundaries of the plea bargaining process and makes a case for extending these boundaries to the criminal standard of proof. It examines the possibility of converting the criminal standard of proof into a default rule, subject to negotiation between the parties. Under current plea bargaining practices, the defendant agrees to plead guilty in exchange for concessions on punishment offered by the prosecutor. According to the model proposed here, the negotiation process would not be limited to the attainment of a full admission of guilt. Rather, the prosecutor would also be able to obtain from the defendant a reduction of the standard of proof required to establish criminal culpability in return for an offer of leniency in sentencing. For instance, the parties could agree that the case will be tried according to the civil standard of proof - the preponderance of the evidence. In exchange for the greater risk of conviction faced by the defendant under a lower standard of proof, the prosecutor would make a partial concession on the sentence in the event of conviction. This Article addresses the viability of this proposed model and advocates its normative desirability.