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Jacopo Della Torre

Plea agreements and miscarriages of justice: a problematic dyad

Doctoral Programme in Diritto per l'innovazione nello spazio giuridico europeo (interateneo UniTs - UniUd)

In the last decades, an increasing number of States have codified legal institutions involving negotiations and agreements between the accused and the State. This global spread of consensual justice is the result of multiple factors, including the practical need to improve the efficiency of criminal justice systems, which are affected by an unsustainable workload. Driven by the need to address this problem, many jurisdictions have introduced new mechanisms based on the exchange of a more lenient punishment for the defendant’s waiver of a number of legal safeguards. In large parts of the world, the "classic" criminal trial has thus started to disappear. The fact that consensual justice requires the accused's waiver of a series of procedural safeguards is of primary importance. Indeed, such characteristic makes plea agreements particularly problematic if – as it often happens – a State includes in the list of abdicable safeguards those safeguards able to reduce the risk of miscarriage of justice, such as the presumption of innocence, cross-examination, the right to confrontation, the right to silence, and the right to appeal. The problematic nature of many contemporary consensual proceedings lies in the fact that they are based on the idea that the accused may undergo a criminal procedure in which the epistemic standard of safeguards is much lower than the one considered optimal by the legal system of reference, thus increasing the risk of judicial errors.

Figure 1: Consent of the defendant and miscarriages of justice

In the light of this, one thing has become manifest. The expansion of consensual criminal justice is a risky phenomenon, since criminal agreements may jeopardise many defendants’ fundamental rights. This leads to the conclusion that plea negotiations can only be an acceptable tool to reduce judicial burden if States also provide an adequate standard of safeguards aimed at preventing the conviction of an innocent person. The present work aims to verify the standard of guarantees of the Italian criminal justice system in this regard. More specifically, the study focuses on the innocence problem of Italian consensual justice, i.e. the risk that innocent persons reach an agreement with the State. However, the outcome of the analysis is not reassuring; in particular, the jurisprudence concerning plea bargaining and adult probation makes it clear that also in Italy the State is often ready to accept the risk of reaching an unjust decision in order to pursue efficiency goals. On the contrary, better news comes from the European context, to which the last part of the essay is devoted. The Council of Europe and the European Union have recently codified a series of guarantees, which considerably raise the level of safeguards in this context. The hope is that such an embryo of a “fair consensual justice” will be applied in practice as soon as possible also in Italy: only if this happens, can plea agreements finally become a phenomenon in line with fundamental rights.

Authors and affiliations

Jacopo Della Torre1
1Department of Legal, Language, Interpreting and Translation Studies, Piazzale Europa, 1 – 34132 – Trieste, Italy


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Jacopo Della Torre
Riti consensuali ed errore giudiziario: un binomio ricco di criticità, in L’errore giudiziario
L. Lupária (a cura di), Milano, Giuffrè, 2021, pp. 401-462

Informazioni aggiornate al: 16.12.2020 alle ore 09:30