Plea Bargaining and Selection of Jurors - Presentation by Prajwal Bhattarai

1. Plea Bargaining and Selection of Jurors Name : Prajwal Bhattarai

2. Plea Bargaining Introduction It is the most common method of resolving cases in the criminal system during pre-trial process. Plea bargaining has long been central to America’s criminal justice system. The practice of negotiating an agreement between the prosecution and the defense. First of all plea should be request by defendant. Plea should be reasonable and should be voluntary knowing the consequences. Usually it involves sentence reductions, dismissal of other charges, recommendations and so on.

3. Plea Bargaining Legal Provision It can be done on three ways: i. Defendant and Plaintiff agree to permit defendant to plead guilty. So, Defendant charged with lower punishment. ii. Defendant ‘pleads on the nose’ i.e. in presence accordance to the original charge in the promise. iii. Defendant pleads guilty in one charge agreeing plaintiff not to charge in the other country as plaintiff can drop charge against defendant`s wife. There is no provision of Plea bargaining in Nepal.

4. Plea Bargaining Author's/Scholar's observations According to Palermo (1998) states that '' If all plea bargaining cases where brought to trial then the amount of time, work and expenses for the prosecution would increase greatly ''. According to Cohen (1989) states that '' The public’s suspicion is increased by the way plea bargaining is conducted in secret manner. Hence, the public have reduced confidence in plea bargaining ''.

5. Plea Bargaining Examples / Practices Plea bargaining usually depends upon prosecutor’s discretion, which extends to determine the crime with which the defendant is to be charged. There are three kinds of plea bargaining on practice. They are: Charge bargaining, Count bargaining and Sentence bargaining. For Example,in a case of armed robbery, the prosecutor may charge the suspect with armed robbery, simple robbery, assault, simple theft, or any combination of these offenses. All of these offenses carry different forms of punishment.

6. Plea Bargaining Conclusion Plea bargaining creates a gap between practice and theoryin the criminal justice system. Punishment is not considered due to the seriousness of crime but due to the capacity of the offender being able to negotiate. National Criminal Procedure Act – 2074; Section 123 sub-section 1 (b)- used as plea bargaining in perverse way. Can we accept that individuals who are connected with serious/heinous crimes such as Rape, Murder, etc getting away with lighter sentences just because they have pled guilty to the charges put forward ?????

7. Selection of Jurors Introduction Jury is a body consisting of a group of people selected as per law who have been given the authority to decide the questions of the fact. Selection of jurors is the procedure during trial. Jury selection is an challenging process. The term Venire is the list of prospective jurors. Lawyers and judges select juries by a process known as ‘voir dire’ which is Latin for 'to speak the truth'. The jury must reach its verdict by considering only the evidence introduced in court and the directions of the judge.

8. Selection of Jurors Legal Provision There is no selection of jurors in judiciary of Nepal. The United States Jury Selection and Service Act of 1968, or ‘Jury Act’ which provides the judicial structure for the selection of United States federal juries. Usually there are 8-23 jurors in American practice. The 12 jury of US is called ‘petit jury’. Jury has important role in plea bargaining. The jury has no role in sentencing. This decision is left up to the judge following submissions made by both sides.

9. Selection of Jurors Author's/Scholar's observations According to Mozley and Whitley ‘Jury signifies a body of men sworn to inquire of a matter of fact and to declare the truth upon such evidence shall be delivered them’. According to Justice Devlin (1905-1992): ‘What makes juries worthwhile are that they see things differently from judges. Trial by jury is the lamp that shows that freedom lives’.

10. Case : People of the State of California vs. Orenthal Simpson (October 3, 1995). Jury selection and their flaws: Jury was formed 2 times after a month. Simpson was black and the victims were white. On the jury team there were: 1 African American Male, 1 Hispanic Male, 8 African American Females and 2 Caucasian Females. All 12 were democrats and only two were college graduates. No juror regularly read a newspaper. ( i.e. not updated ) Two were supervisors. Five had a family member who ran afoul of the law. Five thought of physical force on a family member was sometimes acceptable. Nine thought O.J. was unlikely to have committed murder because he was such a great football player. The scientific method weren't followed during investigation. Not qualified, immature and trainees were there during investigation. No autopsy report including DNA report wasn’t available to jury and the samples weren't collected separately.

11. Examples / Practices A trial jury also known as petit juries, and grand juries on practice. Trial Jury A trial jury, also known as a petit jury, decides whether the defendant committed the crime as charged in a criminal case. Consists of 6-12 people. Trials are generally public, but jury deliberations are private. Defendants have the right to appear, testify, and call witnesses on their behalf. Grand Jury A grand jury is presented with evidence from the attorney, the prosecutor in federal criminal cases in USA. The grand jury determines whether there is‘probable cause’to believe the individual has committed a crime and should be put on trial. Consists of 16-23 people. Grand jury proceedings are not open to the public. Defendants and their attorneys do not have the right to appear before the grand jury.

12. Conclusion and Constructive suggestions Jurors must remain impartial, non-influencing and independent. Jury service is a high duty of citizenship.  Jurors must also be mentally aware enough to understand and apply the judge’s legal instructions. As jurors aren't legal experts, they can often pressurized with the volume of information presented to them, leading in many cases to lengthy, drawn out trials. The issue of the jury competence they should give proper training, discipline, experience, and superior intelligence. They should make able to understand law and facts than laypersons drawn from a broad range of levels of intelligence. Judges will also dismiss jurors who can’t put aside their feelings and apply the law impartially i.e. without actual or implied bias.