There is yet a second truism relevant to my theme : Consensual justice, by any name and definition, is a matter of and for legal professionals. Lay persons are excluded from the market. At the most, they are informed, ex post facto, of the outcome of negotiations and are requested -- where the law so demands -- to formally ratify the deal accomplished by the professional jurists.

Viewed from a systemic perspective, the incompatibility of lay justice and bargained justice means that any expansion of plea bargaining must be expected to bring about a commensurate decline in significant lay participation. And there can be no doubt about the fact that consensual criminal justice is expanding. In its natural habitat, the United States, all attempts to reverse the historic trend and to reduce or even abolish the practice of plea bargaining have failed dismally -- just think of the introduction of Federal sentencing guidelines, which were meant to re-establish determination of the sentencing process by Congress and the Federal Sentencing Commission, and which ended up enthroning prosecutors as the absolute and unchallenged rulers over sentencing while reducing the defense to a powerless supplicant and the judiciary to operating the pocket calculator [1].

In recent years, consensual criminal justice has spread to the non-English-speaking world. Some legal systems, e.g. Italy, Spain and Poland, have introduced into their Codes of Criminal Procedure "official" versions of plea bargaining, granting a sentence reduction to any suspect who, at an early stage of the criminal process, acknowledges the truth of the state's allegations against him and thereby makes a trial unneccessary [2]. Germany has reached more or less the same stage of development, though without changing a single letter of the Code of Criminal Procedure. Confession bargaining, i.e. the court's offer of a reduced sentence in exchange for a (full or limited) confession to be made in open court, has become a wide-spread practice, especially in cases of white-collar and drug crime. The German Federal Court of Appeals has recently approved this practice provided that certain (flexible) conditions are met [3]. The Court required, inter alia, that all parties concerned be involved in the negotiations leading to a consensual disposition, that the "deal", even if it was negotiated privately, be explained in open court, and that the court satisfy itself as to the reliability of the defendant's confession; moreover, the trial court is precluded from committing itself, before trial, to a particular sentence, yet it can indicate the maximum sentence the defendant may expect if he makes a confession [4].

It is not my task here to praise or criticize the worldwide advance of consensual criminal justice. We probably have to accept the movement from the courtroom to the bazaar as an irreversible trend, which has several causes. One of them, it has often been said, is lay participation in criminal justice, or, more exactly, trial by jury. Modern jury trials, the theory goes, are so expensive, complicated and timeconsuming that they cannot be offered to each and every defendant [5]; jury trials are, in fact, exceptional events reserved for the occasional celebrity case or coming about accidentally when all efforts at negotiating a judgment have failed. Jury trials -- the full, partisan presentation of evidence before a panel of uninformed but more or less gullible lay persons -- are so cumbersome and expensive that the criminal justice system, in order to survive, is constrained to find faster and more efficient ways to dispose of routine criminal cases.

This theory, which identifies lay participation as the main culprit in the crime of plea bargaining, has some prima vista appeal, and it fits well with the observation that plea bargaining grows at the same time as effective lay participation declines. Yet the connection between the two factors may be accidental rather than causal. If a system's reliance on jury trial were the cause of plea bargaining we would be at a loss to explain the development of plea bargaining practices in legal systems like Spain, which had previously had a purely professional judiciary, and Germany, where the presence of lay judges on the bench has no observable impact on the way in which trials are conducted.

My thesis is that it is not who is trying cases but how they are being tried which creates (or fails to create) incentives for resorting to informal justice instead of trial. If the trial is designed to achieve a full-fledged, independent presentation of the relevant evidence in order to establish the "truth" about the case, then this effort, especially if the defendant is not cooperative, is bound to be exhausting and timeconsuming. And it is only natural for professionals, especially for those whose training involves creativity in finding loopholes in the law, to look for less strenuous and quicker ways of achieving an acceptable outcome. If a disposition can be reached within a few hours or even minutes by negotiating over a cup of coffee in one of the lawyers' offices, then for the professional participants not to grasp such an opportunity would be strongly counter-intuitive. One might say that simple laziness on the part of professional lawyers lies at the source of consensual justice. In a more beneficial mode, one can argue that negotiated justice represents the triumph of efficiency : it achieves within a short time and with very little effort a disposition (more or less) identical with the judgment and sentence which would otherwise be announced months later at the end of a full trial and sentencing hearing. Whichever of these interpretations one prefers, neither the existence nor the specifics of bargained justice in a legal system are dependent on the degree of lay participation in criminal justice.

There may nevertheless exist a cause-and-effect relationship between consensual justice and lay justice, but its direction is different from what traditional theory leads one to assume : It is not lay justice which has engendered plea bargaining, but plea bargaining may bring about the death of lay justice.

I have said above that consensual justice is the realm of professional lawyers. I have yet to substantiate this thesis, and I will do so now briefly. Plea bargaining cannot function without a mass of background information shared by all participants : one has to know about the basic facts of the case, one has to know about the applicable rules of law and of evidence which have a potential impact on the outcome of a trial, one has to know about "going rates", i.e. standard sentences for the relevant offenses, and one has to know the rules of bargaining. Because lay persons evidently lack this information, they cannot participate in negotiations, and they cannot even sensibly determine whether the outcome is (relatively) fair or whether the defendant is getting a "bum deal". German practice can serve as an example for the effective exclusion of lay judges from negotiations even where the law would require their inclusion : Although the Federal Court of Appeals has emphasized that negotiations, to be acceptable, must involve all participants in the criminal process, including the defendant as well as lay judges sitting together with professional judges [6], practice seems to simply ignore this exhortation. I have not heard of a case in which lay judges were actually present during crucial discussions on the exchange of sentencing leniency for a confession. In order to meet the high court's requirement, the presiding judge will inform his lay colleagues of the terms of a deal after it has been concluded; and it would take an extraordinarily courageous lay judge to question the wisdom or fairness of a disposition which has already been agreed to by the prosecutor, the defense attorney and the professional judge(s). Even if a lay judge dared to object, he would not be in a position to substantially question the wisdom of the proposed disposition because he lacks information of dispositions in similar cases. The role of lay judges in plea bargaining can thus in effect not be greater than that of the public : they hear and silently accept what has been decided but do not in any way co-determine the outcome.

Does this mean that lay judges are an endangered species because there is room for them only in the rapidly diminishing jungle of non-consensual trials ? Yes and no. Although the above analysis suggests the gradual displacement of lay justice by consensual, professional justice, there is still good hope for survival. For one thing, the jungle of true adversariness may shrink, but it will never totally disappear. There will always be those cases in which the prosecution wishes to make the crime a public affair, the defendant insists on being innocent, or the parties simply cannot agree on a disposition. There must exist an instrument to deal with these cases, and the traditional public trial, which aims at a complete presentation and discussion of the relevant facts, may still be the best choice.

But there is yet another, less obvious function of the jury trial : it serves as an incentive for parties to compromise. The very unpleasantness and expensiveness of a full-fledged jury trial is the most forceful argument in favor of a consensual disposition. In other words, the rapid expansion of bargained justice can only be explained against the backdrop of a traditional trial which is organized in a way which gives parties good reasons to avoid it. The trial process serves this deterrent function best when it is most complicated, time-consuming and unpredictable in its outcome. A jury trial, especially a jury trial U.S. style, optimally fulfils these requirements : the participation of lay jurors, left to their own devices in determining the issue of guilt, necessarily generates convoluted rules of evidence, endless interruptions of the trial, and often fortuitous results. Jury trials are thus the ideal breeding ground for plea bargaining. Bench trials, by contrast, appear much less threatening to professional lawyers. It is therefore no surprise that bench trials are sometimes employed for semi-consensual dispositions or "slow pleas" and that those who wish to abolish plea bargaining recommend bench trials as a more rational and fair but equally expedient alternative [7]. What we have, then, is a partnership between trials with lay participation and plea bargaining -- an unhappy partnership perhaps, but a partnership nonetheless : like Siamese twins, one cannot exist without the other.

Is there any way to make the relationship between consensual justice and lay participation more harmonious and efficient ? There may well be, but any improvement would require significant changes in the system of achieving criminal justice without trial. As long as we leave the determination of the verdict and sentence to unregulated bargaining between the parties, based on whatever information on the case they may care to share, lay judges cannot play any positive role in the criminal process. Yet there exist procedural options beyond the traditional alternative between jury trial and plea bargaining, and some of these options have already been tested in various jurisdictions. One of the most promising ways of resolving non-contested criminal cases without trial but not without a reliable determination of the relevant facts and law is a judicial or judicially controlled pretrial investigation culminating in a provisional judgment based on the written record. Italian law provides for a variant of this model under the name of giudizio abbreviato [8] : The public prosecutor conducts an investigation of the case and submits the file to a magistrate, whose regular function is to determine whether the evidence is strong enough to warrant the opening of a trial. Under the giudizio abbreviato scheme, the magistrate can, with the consent of the defendant, at this stage of the process issue a judgment which is based on the information contained in the file. In order to encourage the defendant to renounce his right to a full-fledged trial, the (hypothetical) "normal" sentence is to be reduced by one third [9].

A somewhat different but comparable scheme is the Strafbefehl (penal order) procedure provided in paras. 407-412 German Code of Criminal Procedure : The public prosecutor, after a full investigation of the case, submits to the trial judge a written proposal of a verdict and a sentence (which cannot be more severe than a fine or a suspended prison sentence of one year). If the judge, on the basis of the dossier of the investigation, finds the prosecutor's proposal acceptable, he signs the proposal and thereby transforms it into a provisional judgment. The defendant can accept or contest that disposition; in the latter case, the provisional judgment loses force and the defendant receives a full trial. The German scheme neither requires the defendant's advance consent nor formally provides for a sentencing discount in exchange for the defendant's acceptance of disposition without trial; but in practice the prosecutor's proposal is often based on prior negotiations between the defense and the prosecution on an outcome acceptable to both sides.

One could conceive of other, slightly different schemes. There could be a more or less active role in the investigation for a judicial officer like the French juge d'instruction, and there could be greater opportunity for the parties, especially for the defense, to actively participate in the investigation. Lawyers from common law jurisdictions may find the idea of a unified prosecution/defense investigation abhorrent, but I would argue that the defense is generally better off being involved in the "official" investigation than being constrained to conduct its own, independent investigation. But be that as it may -- where is the role of lay judges in all this ?

Lay judges may come in as something akin to a tribunal of second instance for the defendant. In a system of semi-consensual justice, as sketched out above, the defendant is expected to submit to being adjudicated on the record of the investigation which he may or may not have actively participated in. In order to obtain the defendant's advance agreement to a shortcut judgment, most systems experimenting in this area offer him the incentive of a sentence reduction. A sentence reduction is, however, not the best of solutions : it is either undeserved (when the defendant gets off with a lighter sentence than his co-perpetrators just because he helped to shorten the process) or a sham (when the reduction is first added to the hypothetical sentence, then deducted from it). An alternative would be to promise the defendant nothing but a "realistic" sentence and to grant him the right to appeal the magistrate's judgment to a panel consisting, exclusively or in major part, of lay judges. How does that differ from traditional plea bargaining ? The trick is the proviso that the full court would, barring extraordinary circumstances, be precluded from imposing a sentence more severe than the sentence originally suggested by the magistrate. The defendant would thus have nothing to lose in demanding a trial. He could either accept the verdict and sentence imposed by the professionals (prosecutor and magistrate), or he could appeal to a court dominated by lay persons, with their different life experience, their different value judgments, and their potentially different sense of justice and equity. If that option exists, the defendant's acceptance of a provisional judgment would be truly voluntary -- a great step forward from traditional plea bargaining, which forces the defendant into submission by threatening him with a substantially heavier sentence if he refuses to cooperate. The scheme tentatively proposed here would have the additional advantage of restoring to lay judges their indigenous role as complementing -- not merely decorating --professional criminal justice.

How and whether a two-tiered system as suggested above would in fact "work" depends on a host of factors. The most critical issue is the attractiveness of opting for a second chance : if the defendant has only to gain and nothing to lose by appealing to a lay-dominated panel, there is the obvious risk of an overburdening of the system by a great number of "second-tier" cases. One could conceive of various procedural burdens to make the defendant think twice before demanding a review of the disposition proposed by the professional judge : he could be required to pay the cost of the trial if the lay panel's disposition does not (substantially) differ from the original one; there might be the possibility of increasing the sentence under "exceptional circumstances" (e.g., new evidence showing a substantially more serious offense or much greater culpability on the part of the offender), or the defendant could be required to propose new evidence in his favor in order to be granted access to the "second tier." One could, in any event, limit the trial before the lay judges to issues not resolved in the course of the pretrial process; this would mean that the burden of presenting evidence would initially be on the defense (whereas the prosecution would have the right of rebuttal). I do not suggest that I have as yet devised a perfect, practicable procedural system reconciling the ideas of efficient consensual justice and lay participation-- but I would suggest that it is worthwhile thinking about ways of bringing about a peaceful co-existence of these two concepts.