The adversarial nature of the system puts judges in a passive role, in which they are completely dependent upon the parties to develop the factual record and cannot independently discover information with which to assess the strength of the case against the defendant.
[4] The U.S. Supreme Court warned, in the same decision, that this was conditional only and required appropriate safeguards and usage—namely that plea incentives so large or coercive as to overrule defendants' abilities to act freely, or used in a manner giving rise to a significant number of innocent people pleading guilty, might be prohibited or lead to concerns over constitutionality.
[5] Previously, the Court had held in United States v. Jackson that a law was unconstitutional that had the effect of imposing undue fear in a defendant (in that case, the fear of death) to the point it discouraged the exercise of a constitutional right (the 6th Amendment covering the right to a jury trial), and also forced the defendant to act as an unwilling witness against himself in violation of the 5th amendment.
[11] The Court stated that: [T]he plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial—a waiver of his right to trial before a jury or a judge.
[12]The ruling distinguished Brady from other prior cases emphasizing improper confessions, concluding: "we cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary."
[9] Litigation is pending that could determine whether alleged victims of federal crime have a right to be informed by a U.S. Attorney before plea bargains are entered with a defendant.
[21] A theory was put forth that an informal courtroom work group is secretly formed between judge, defense attorney and prosecutor, wherein the goal then becomes to speed cases through rather than to ensure that justice is served.
[22] Plea bargaining is also criticized, particularly outside the United States, on the grounds that its close relationship with rewards, threats and coercion potentially endangers the correct legal outcome.
[23] In the book Presumed Guilty: When Innocent People Are Wrongly Convicted (1991), author Martin Yant discusses the use of coercion in plea bargaining.
That explains why prosecutors sometimes seem to file every charge imaginable against defendants.The theoretical work based on the prisoner's dilemma is one reason why, in many countries, plea bargaining is forbidden.
Bidinotto found:[28] ...ending plea bargaining has put responsibility back into every level of our system: police did better investigating; prosecutors and lawyers began preparing their cases better; lazy judges were compelled to spend more time in court and control their calendars more efficiently.
For example, if the accused faces 10 years and has a 50% chance of losing in court, then an agreement will result in a five-year sentence, less some amount deducted for saving the government the cost of trial.
[34] Justice Hugo Black once noted that, in America, the defendant "has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources.