John Rappaport, a law professor at the University of Chicago, proposes a more radical idea: If pretrial bargaining with the prosecutor is going to take place, it should embrace more than the basic exchange of guilt for leniency. Defendants should be able to bargain across the trial process itself, offering simplicity in exchange for a lesser charge. What if a defendant agreed to a trial before six or three jurors, instead of 12? Or what if the standards of evidence were downgraded, from beyond a reasonable doubt to a preponderance of the evidence?

“It’s all fairly straightforward, and wouldn’t require any real administrative framework, but it’s foreign,” Rappaport said. “If a defense lawyer approached a prosecutor and said, ‘Hey, let’s do away with voir dire and take the first 12 jurors who walk in the room,’ the prosecutor would be taken aback.”

He suggests that reforming the plea system to incorporate more trials would expose other problem areas. “Trials are an important window into how the system is functioning—they’re a form of audit,” Rappaport said. “They shine light on investigatory and prosecutorial behavior and air them publicly.” If the police behave badly, this remains buried when defendants take a plea. In this regard, even a heavily pruned trial is favorable to no trial at all. And such a bargaining process would not exist without limits. “The outcome of the trial still has to stem from the application of general legal principles to facts of individual cases,” he said. A defendant could not agree to a coin flip, for example, as the determinant of guilt.

Read more at The Atlantic