Bargaining the Rules of Evidence

Thomason, Matthew

Abstract

Plea bargains depend in large part on the available evidence against the defendant. Strictly speaking, these negotiations should be based only on evidence that is likely to be admissible at trial. Bargains therefore implicitly depend on the structure and form of the rules of evidence. In the last 30 years in England and Wales, reforms of rules concerning the right to silence, bad character evidence, and pre-recorded witness testimony have generally increased the amount of admissible evidence for the prosecution, whilst simultaneously narrowing opportunities for the defence to challenge that evidence. It might consequently be argued that reforms to evidence law are now contributing to additional pressures on the defendant to plea bargain. However, recent research has suggested that the rules of evidence themselves are increasingly bypassed following negotiations between trial counsel (“evidence bargains”). The extent to which plea bargains and evidence bargains relate and overlap is an underexplored area of study, but has significant implications for the rights of defendants, the rights of complainants and witnesses, and our understanding of the trial process as a whole.

Citation

Thomason, M. (in press). Bargaining the Rules of Evidence. In M. Langer, M. McConville, & L. Marsh (Eds.), Research Handbook on Plea Bargaining & Criminal Justice. Edward Elgar Publishing

• Acceptance Date: Sep 22, 2022
• Deposit Date: Nov 22, 2022
• Publisher: Edward Elgar Publishing
• Series Title: Research Handbooks on Criminal Law & Justice
• Book Title: Research Handbook on Plea Bargaining & Criminal Justice
• Chapter Number: 20
• Public URL: https://nottingham-repository.worktribe.com/output/14031657
• Additional Information: This is a draft chapter. The final version will be available in Research Handbook on Plea Bargaining & Criminal Justice, edited by Máximo Langer, Mike McConville and Luke Marsh forthcoming 2023, Edward Elgar Publishing Ltd.; The material cannot be used for any other purpose without further permission of the publisher, and is for private use only.