Plea agreements in criminal proceedings

The term plea agreement describes an agreement resulting from a negotiation between the parties to a criminal proceeding. Such an agreement is mutually beneficial to the parties and aims at an early termination of the proceeding. The use of plea agreements is a typical feature of most criminal justice systems which are based on common law, such as the English system. In the last decades plea agree- ments also have entered the system of criminal proceedings of civil law countries (e.g. Germany). The international war crimes tribunals whose statutes are based on common and civil law tradition partly allow for consensual disposal of cases. Austrian criminal procedure law, which has its roots in the civil law tradition, currently does not contain rules on plea agreements. However, such agreements do actually exist in Austrian practice and in recent years discussions among scholars and practitioners on that topic increased. Ongoing critics from the public concerning lengthy proceedings and limited personnel resources within the judiciary indicate the need for efficient means to resolve criminal cases. The current working programme of the Austrian federal government aims to shorten the length of criminal proceedings. Major issues and research questions are: (i) comparison of criminal procedure systems based on common and civil law (especially the English and Austrian system); (ii) pro and contra plea agree- ments; (iii) in-depth analysis of English case law and rules on plea agreements; (iv) short analysis of the law on plea agreements in Germany and in international criminal justice for comparative purposes; (v) compatibility of plea agreements with principles of Austrian criminal procedure; (vi) identifying existing instruments for consensual disposals of cases in Austrian criminal procedure; (vii) develop- ment of model rules on plea agreements for Austria; (viii) economic considerations and criminological aspects. The following legal methods will be applied: (i) interpretation of statutory and case law (applying traditional legal methods as literal, historic, systematic and teleological interpretation), (ii) compara- tive analyses (iii) analyses of literature; (iv) interviews with practitioners. The project is planned for a period of 10 months starting November 2014. It is planned to publish various articles in top peer-reviewed law journals with the results of the research project and to give lectures at international conferences on that topic. A research stay at the University of Cambridge in the way suggested is absolutely necessary in order to achieve best results. An important impact on academic research in Austria is expected as plea agreements have not been subject to substantive research by Austrian scholars yet. The author has the possibility to return as University Assistant post doc to the University of Vienna and to apply the knowledge gained abroad.

The overall scientific goals have been to contribute to the understanding of the English concepts of guilty plea and plea agreement (plea bargaining) in Austria and to develop ideas for model rules of a possible future provision on plea agreements in Austria. The research showed that the term plea bargaining is not an adequate term to describe the existing phenomena in English law as this term creates the impression of the existence of a bazaar atmosphere which is not necessarily part of the different forms of negotiations. Instead, a more neutral term, namely plea discussion which eventually leads to the conclusion of a plea agreement would be suitable. English academics and practitioners are very critical in regard to sentence discussions involving the judge. Plea discussions on charges between the defendant and the prosecutor, however, have a longstanding tradition. Very recently, English policy makers introduced formalized mechanisms to conduct plea discussions in economic criminal law cases which shall give the public prosecutor and the defendant equal powers. As these instruments have not been used frequently so far, they most probably will not serve as a blue print for further formalized rules on plea discussions in the near future.The implementation of a possible new law on plea agreements in Austria is eventually a political decision. Two questions are crucial in this regard: Do plea agreements happen informally in practice? Are rules on plea agreements necessary in order to have an effective criminal justice system? If they happen informally in practice what interviews and existing literature suggests, the implementation of a provision on plea discussions is recommended. Otherwise the occurrence of informal plea discussions would lead to an unequal treatment between the defendants as the possibility of the conclusion of a plea agreement would solely depend on the actors involved and their willingness to participate in plea discussions. However, an empirical study which gives thorough evidence about the occurrence and forms of plea discussions is needed. In regard to the question of efficiency, Austrian criminal law already foresees a lot of possibilities to shorten criminal proceedings. However, for major economic criminal law cases with complex case structures a provision on plea discussions would save time and resources. For the development of model rules the following ideas shall be kept in mind: Only discussions on the sentence and discussions on the charges which allow the prosecution to drop certain counts if the defendant confesses in regard to the remaining ones seem feasible for the Austrian criminal system. In regard to the actors involved, the discussions must not take place with the defendant but with his counsel. The judge would need to be in charge of controlling the discussions at the earliest possible stage in order to minimize the risk of wrong convictions. The interests of victims have to be respected as well. An appeal against a judgment based on a plea agreement should not be possible as it would impede the overall aim to ultimately shorten the criminal proceeding.