I. Patteggiamento in Italy

When Italy in 1988 introduced a new Code of Criminal Procedure based on the Anglo-American adversarial system, all commentators agreed that the success of the reform would depend on the functioning of novel alternative procedures. Although plea bargaining and other abbreviated procedures have a relatively short history even in Anglo-American criminal justice,Footnote ⁶ it was widely assumed that an adversarial model would have no future in Italy without a broad-scale adoption of versions of negotiated justice.Footnote ⁷ This is why the Italian Code of Criminal Procedure (CCP) contains various provisions dedicated to alternative procedures.

One such alternative procedure is the penal order, which imposes a financial penalty that may be substituted for a short prison sentence. The judge adopts it ex parte based solely on the prosecutor’s request without first hearing the defense’s arguments.Footnote ⁸ The defendant has two options: accept the measure and pay the penalty—which includes numerous benefits, such as a considerable reduction in sentence—or oppose it. In other words, penal orders are not negotiated, but are instead offered on a “take it or leave it” basis.Footnote ⁹ If the defendant chooses to oppose the penal order, a regular trial begins. However, the defendant risks receiving a more severe sentence if convicted.

A penal order has been employed in 7% of all cases in 2022. The figure of 7% has remained stable nationwide since 2019.Footnote ¹⁰ There are no studies that objectively explain why penal orders are so rarely used. One reason may be that penal orders can issue only in cases of relatively low seriousness. This means that defendants who receive a penal order do not take a significant risk by requesting a full trial. If the defendant is convicted at trial, the consequences are not so severe—at most a few months in prison, which can be suspended with probation.

However, the two most important alternative procedures are the abbreviated trial (giudizio abbreviato) and plea bargaining (known in Italian as patteggiamento, a word that defines the process of reaching an agreement).Footnote ¹¹ Even so, thirty-seven years after the new Code came into force, the alternative procedures remain the exception rather than the rule in actual practice. According to criminal justice statistics for 2022, only around 30% of cases nationwide were resolved through either of these alternatives to a full trial.Footnote ¹² Furthermore, while these mechanisms may enhance procedural efficiency, their impact must be assessed against the broader backdrop of the well-known structural delays affecting Italian criminal proceedings.Footnote ¹³

Plea bargaining and abbreviated proceedings are employed in less than one–third of all criminal cases, but they are crucial in practical and strategic terms, particularly concerning the system’s sustainability.Footnote ¹⁴ From a practical perspective, the data show a direct correlation between the sustainability of the entire system and the efficiency with which judicial authoritiesFootnote ¹⁵ administer justice.Footnote ¹⁶ The courts in which these alternative procedures are most often used are also those in which cases are resolved more quickly.

From a strategic perspective, one of the most challenging decisions a defendant faces in Italy is whether to choose a plea bargain, an abbreviated procedure, or a full trial. It is no coincidence that Italian lawyers have a saying that defense attorneys earn their fees primarily by advising their clients on which of these procedural options best serves their interests.

As the last statement shows, the importance attributed to decisions on the type of procedure to be used demonstrates that the reform of criminal procedure has ultimately been successful, despite limitations and shortcomings that undoubtedly still exist. Today, the prevailing mindset is that the defense must be able to choose the best strategy without ruling out any solution a priori. This idea was much less entrenched under the old Code of Criminal Procedure, in which the inquisitorial model imposed a one–size–fits–all approach that left little room for procedural choices.

Italian plea bargaining differs significantly from the version employed in the United States. First, it does not apply to all types of crime but only to minor offenses for which the judge deems a prison sentence of not more than five years appropriate.Footnote ¹⁷ A prison sentence of five years or less can, however, be imposed for rather serious crimes, such as robbery or extortion. Drug trafficking and certain offenses related to organized crime may also fall in this category, especially when mitigating circumstances exist.Footnote ¹⁸ Even if the elevated statutory sentence range indicates the serious character of a crime, the parties may agree on a sentence that does not exceed five years and present that agreement to the court,Footnote ¹⁹ especially if the defendant has cooperated with law enforcement.Footnote ²⁰ The judges will then calculate, based on the file submitted by the prosecution, the appropriate sentence they would impose for the crime in question and either accept or reject the parties’ proposal.Footnote ²¹

The benefit for the defendant is standardized by law, and the maximum discount amounts to one-third of the sentence the court would apply if the parties opted for an ordinary trial.Footnote ²² A reduction of up to one-third is not a fixed measure. The law allows for some flexibility, as there are no legal restrictions preventing the parties from agreeing to a lesser discount. Alongside these benefits, the law provides for others, notably the avoidance of forfeiture and additional penalties, such as the ban on holding certain positions or the disqualification from certain functions.Footnote ²³ Both may be subject to negotiation and agreement, except in cases of mandatory forfeiture.

Additionally, as a collateral benefit for the defendant, the law excludes the civil party from the plea bargaining procedure.Footnote ²⁴ In Italy, victims can ordinarily seek compensation for any injuries caused by the offense by joining the criminal proceeding as a civil party.Footnote ²⁵ Yet victims are not assigned a role in patteggiamento. The law does not even impose an obligation on the prosecutor to consult the victim, even in cases involving violence against the person.

This is quite surprising. The Code, reformed in the second decade of the millennium to incorporate certain international conventions for the protection of victims, now requires prosecutors to notify the victim if they intend to dismiss the case and if the defendant’s release from pre-trial detention—or a reduction of restrictive measures—is being discussed while proceedings are pending.Footnote ²⁶ However, no warning is required concerning plea bargaining, which can take place even without the victim’s knowledge.

Because victims are excluded from participating in patteggiamento, if they wish to obtain compensation for their injuries, they must bring a civil suit. Yet in doing so, they are unable to rely on the criminal court judgment because a bargained sentence does not have any legal effect outside the criminal process, whether in civil, administrative or disciplinary proceedings concerning the same event.Footnote ²⁷ Informal agreements involving some consideration for the victim’s position are possible, however. For example, in workplace safety crimes, the prosecutor may informally indicate a willingness to consider a plea bargain only if the victim is adequately compensated. These practices vary greatly, however, and do not affect the level of formal legislation, under which the victim has no impact on plea bargaining.

The exclusion of the victim has been criticized, especially because the victim has become a central focus of debate in the European criminal justice framework. But nothing has changed thus far in the Italian system, except for the crimes of femicide and other hate crimes against women. The Act of December 2, 2025, no. 181, adopted by Parliament gives victims of such crimes the right to be notified of the plea presented by the parties, to attend the hearing before the court, and to present legal arguments to the court.Footnote ²⁸

Lastly, additional benefits for the defendant are possible if the terms of the agreement provide for a sentence not exceeding two years of imprisonment. In that case, the parties may propose to the judge to suspend the sentence, and the crime may be expunged from the official record if the defendant does not commit a similar offense within the following five years.Footnote ²⁹

Italian law does not allow any form of negotiated justice for offenses punishable by life imprisonment. Plea bargaining cannot take place because it is impossible to reduce a life sentence to less than five years.

A key difference between the Italian and Anglo-American models of plea bargaining concerns the scope for negotiation. In the Italian system, neither charge bargaining nor fact bargaining is permitted, because both judges and prosecutors must observe the principle of legality, also known as the principle of mandatory prosecution. According to this principle, any act that constitutes a crime for which there is sufficient evidence to establish probable cause must be formally charged.Footnote ³⁰ The prosecutor has no discretionary choice and must assess the strength of the evidence in similar ways as a judge. Consequently, the only agreement the parties can propose to the court is a sentence bargain. Yet the parties maintain a margin of appreciation in their interpretation of the law, including the recognition of mitigating circumstances in the agreement. The prosecutor may also assert that there is no probable cause about a fact that would constitute a crime in abstract terms, thereby focusing the prosecution only on other facts found by the police in their investigation. However, each of these choices must be legally justified and is subject to review by the court, which has the final say.Footnote ³¹

The law leaves it to the parties to decide whether to enter into plea bargaining. The procedure can be initiated at an early stage of the investigation, and the deadline for proposing it is the conclusion of the preliminary hearing.Footnote ³² The parties can agree to settle before the investigation concludes, although this happens relatively rarely. In such cases, the prosecutor formally closes the investigation and begins prosecution because, technically, there can be no judicial decision to convict without it. However, in practice, the investigation has effectively been halted midway through. In most cases, however, negotiations start only after the investigation has been concluded and the prosecutor has filed charges. In some cases, the law allows the parties to initiate a plea bargain even after the preliminary hearing has been concluded.

The Italian system does not permit unscrupulous negotiations that could violate the fundamental principle that the application of criminal law is non–negotiable. This has practical consequences. For example, prosecutors are prohibited from making sentence offers that are only valid for a very short period of time (so-called “exploding offers”). The Italian Constitutional Court has issued numerous decisions confirming that certain forms of pressure related to time limits for accepting a plea bargain are incompatible with the Italian legal system.Footnote ³³ This strict rule is based on the Italian understanding of the principle of legality. According to that principle, a penalty is either lawful and proportionate, and thus remains so whenever it is applied by the judge, or it is not. The notion that there could be a “discounted” sentence, akin to sales in clothing stores, would ultimately make punishment depend on a market logic rather than on reasoning based exclusively on what is provided by law.

Moreover, the proposal must be justifiable in formal terms—that is, it must fall within the permitted minimum and maximum penalty limits for that offense. That is why prosecutors must explain their reasons if the defense proposes a sentence that they argue should be rejected. These reasons must be strictly legal and never be expressed in terms of mere policy or expediency. For a rejection to be legitimate, it must be in writing and justified on legal grounds, such as an incorrect description of the facts of the indictment, an improper legal qualification of the facts, an incorrect balance between aggravating and mitigating circumstances, or a sentence proposal that is clearly disproportionate with regard to the criminal law’s aims of retribution and rehabilitation.Footnote ³⁴

The defense can challenge the prosecutor’s rejection by resubmitting its proposed plea bargain to the trial court, requesting the court to accept it.Footnote ³⁵ If the trial court thinks that the motion is well-founded and that the prosecutor incorrectly rejected it, the court may, at the end of the trial,Footnote ³⁶ impose the sentence indicated by the defense in the plea proposal. This possibility is meant to prevent prosecutors from pursuing excessively punitive sentences in plea bargaining.Footnote ³⁷

In deciding whether to enter a plea, the defendant is not alone because the right to a lawyer cannot be waived in the Italian system.Footnote ³⁸ Negotiations with the prosecutor are, in practice, conducted by counsel. In those rare cases in which the initial agreement is concluded by the defendant, counsel must be informed of the status of the negotiations before any agreement can become final.

Depending on the time at which negotiations are taking place, the defense may or may not be aware of the evidence the prosecution holds. Full disclosure only occurs at the end of the investigation, so if a plea agreement happens before that point, which is rare, the defense would not have full access to the prosecution file. Defendants may opt for such an early plea agreement if they believe that they hardly have a chance of being acquitted in court.Footnote ³⁹ However, full disclosure is always guaranteed at some point, as the prosecutor must submit the file to the judge along with the plea bargain proposal so that all necessary checks can be conducted. For obvious reasons of fairness, the defense can at that time also consult the file to get a more accurate idea of the evidence in the prosecutor’s possession. But in such cases, full disclosure comes too late. The plea bargain has already been accepted, and the defendant is precluded from revoking consent at the last minute. The situation is different when plea bargaining occurs after the investigation has been concluded; at that time, investigative secrecy no longer applies, and the defense has unlimited access to information and evidence gathered by the police or prosecutor. This is why most plea bargains occur at this advanced phase of the proceedings.Footnote ⁴⁰ At that point, all the information is on the table, making it easier for the defense to decide on the best strategy. There is no disincentive to waiting, because the level of sentence discount is not dependent on the time at which the defense agrees to a plea bargain.

In practical terms, much of the defendant’s awareness depends on the quality of their legal representation, an aspect completely disregarded by Italian legal provisions. If one adopts a purely formal approach, what matters is only that a lawyer is present when the agreement is concluded. The court does not control the quality of the service, nor is defense counsel’s lack of competence a valid reason for appealing the judgment.Footnote ⁴¹ Ironically, this flaw causes further dysfunction in the system as the mere presence of a defense lawyer is usually seen as a justification for not scrutinizing the effective compliance with crucial procedural safeguards. For example, the defendant may have only an approximate knowledge of the Italian language. Yet, no interpreter is appointed if the defendant is assisted by a lawyer; it is assumed that the lawyer has somehow managed to explain to his client the terms of the agreement.Footnote ⁴² The same applies to establishing the defendant’s actual intent to enter a plea: in Italian courtrooms, it is rare to hear anything more than the judge asking a few standardized questions, such as, looking the defendant in the eye, “Does the defendant agree?” or “Does the defendant consent?”Footnote ⁴³ Of course, these questions have an implicit meaning. They serve as a warning to the defendant not to back out of the agreed-upon terms. In such cases, the defense attorney usually answers on behalf of the defendant, who merely nods his head if necessary.

In strict legal terms, patteggiamento does not constitute a contract. The negotiations among the parties may end with just a sentence proposal submitted to the judge, who decides whether the sentence that the parties have agreed on can be accepted or should be rejected. To make this assessment, the court is required to ascertain that several conditions have been fulfilled.

The first condition to be verified is that the legality principle is respected. The parties might have cut some corners to reach an agreement, so the court must scrutinize carefully whether the factual description of the charges, their legal definition, and the balance between mitigating and aggravating circumstances are correct.Footnote ⁴⁴

Second, the court must be satisfied that the sentence proposed by the parties is consistent with the retributive and re-educational purposes of punishment set by the Italian Constitution. The Constitutional Court, with judgment no. 313, issued in July 1990, introduced this second check shortly after the Code of Criminal Procedure took effect. The Court had received three constitutional challenges to the constitutionality of the plea bargaining provisions; these challenges claimed that the provisions conflicted with the principles of legality, judicial subordination to the law, the right to personal freedom, the right to a lawyer, and the presumption of innocence. In 1990, the Constitutional Court held that plea bargaining was in principle compatible with constitutional principles but that judges must verify the appropriateness of the proposed negotiated sentence.Footnote ⁴⁵ Therefore, courts must check whether the proposals of the parties are compatible with the requirements of retribution and rehabilitation, both enshrined in Article 27(3) of the Italian Constitution.Footnote ⁴⁶

The third check concerns the ascertainment of the defendant’s criminal responsibility. The court must verify that the defendant is not entitled to an acquittal.Footnote ⁴⁷ The provision requiring this assessment—Art. 444(2) Cod. Pen. Pro.—has often been considered ambiguous and deserves further explanation. The Code does not impose on the court an obligation to determine beyond a reasonable doubt whether the defendant is guilty, as in a full trial, but it compels the judge to check whether elements in the prosecution file clearly show that the defendant deserves to be acquitted. The nature of these elements may vary. For example, they may concern formal reasons, such as the expiry of the statute of limitations, an applicable amnesty, or the absence of a condition for prosecution—e.g., the victim’s complaint for certain offenses.Footnote ⁴⁸ However, the law does not distinguish between formal and factual grounds. Therefore, in theory, an acquittal could also be based on a lack of evidence sufficient for conviction. Many scholars have referred to the existence of this legal obligation of judicial review to argue that plea bargaining is not different from a trial judgment and should involve thorough fact-finding.Footnote ⁴⁹ Without such an assessment, they claim, it is never acceptable to convict an individual. However, practice significantly differs from these scholars’ interpretation. Judicial review is appreciably thorough with regard to formal issues such as amnesty, time limitations, and the victim’s complaint. But it is much more superficial regarding the sufficiency of the evidence to convict.Footnote ⁵⁰ In concrete terms, case lawFootnote ⁵¹ permits the court to accept a plea bargain unless the parties ignored clear evidence of the defendant’s innocence which would result in an acquittal. In sum, the prevailing judicial interpretation allows judges to limit themselves to verifying that there are no obvious and blatant errors in the parties’ assessment of the evidence, rather than delving deeply into the case.

Plea bargaining in the Italian system does not presuppose an admission of guilt on the defendant’s part: the Code does not require a prior confession, and the Court of Cassation has never required it in its interpretation. Of course, it is not uncommon for a confession to be made, which allows the prosecution and defense to reach an agreement. Admitting guilt helps the defendant in obtaining a lenient sentence, as does cooperation with the police and the prosecutor. Regarding certain crimes, such as organized crime, terrorism, drug trafficking, and corruption, the benefits for the defendant from collaboration with law enforcement are substantial, allowing for a greater reduction of the sentence in comparison with other crimes (with the qualification that, in corruption cases, the reduction requires the prior return of the proceeds—conduct that functions as an implicit confession). Nevertheless, confessing guilt does not constitute a legal prerequisite for plea bargaining. Therefore, it is not uncommon to see someone who has accepted a sentence through plea bargaining claim, perhaps in a later press interview, that he is innocent.Footnote ⁵²

Finally, the court must verify that the defendant acts voluntarily and is aware of the consequences of the plea bargain. This is a highly delicate aspect, and perhaps the most disappointing one in practice, because judges tend to rely on the defense attorney’s activity in this regard.Footnote ⁵³ Judges usually dedicate very little attention to this issue, in terms of both time and quality. They usually do not take the time to summarize the terms of the agreement or read the most relevant passages or explain the consequences of accepting the plea bargain to the defendant. What may be regarded as inadequate scrutiny in U.S. practice—six to eight minutes devoted to determining the validity of a guilty pleaFootnote ⁵⁴ —is much more than what usually occurs in Italian courtrooms. Here, determining the defendant’s voluntariness takes no more than two minutes, and often less than half that time.Footnote ⁵⁵ This practice is even more regrettable as there probably are cases in which defendants feel pressured to accept a plea bargain, especially when they are held in pretrial detention.

It is also worth noting that the defendant’s presence at this stage of the proceedings is not mandatory. The court will order the defendant to appear in person only if it deems it appropriate for verifying the voluntariness of his consent.Footnote ⁵⁶

The Code explicitly demands that the court examine all the aspects named above. If the court finds that any of these conditions has not been fulfilled, it must reject the parties’ proposal.Footnote ⁵⁷ The prosecutor and the defense are then free to submit a new proposal before the deadline has expired. The judge is precluded from suggesting alternative solutions to those presented by the parties.Footnote ⁵⁸ In other words, the court may indicate what makes the submitted agreement inadmissible but cannot make a proposal of its own or participate in the negotiations. Judges taking part in bargaining or analogous practices would automatically be disqualified,Footnote ⁵⁹ although informal contacts may occur in practice. The defense especially may attempt to speak informally to the judge about the terms of a possible plea bargain, whereas it is unlikely that the prosecutor would take responsibility for acting proactively. However, practices vary greatly; some judges are less formal than others and are more willing to express an opinion on the prospective plea, albeit hypothetically, while others have an opposite attitude. In the end, these practices often remain linked to personal and professional relationships.

The parties may appeal a decision invalidating a plea bargain. If the trial court accepts a sentence proposed by the defense despite the prosecutor’s objection, the prosecutor may appeal the sentence to the Court of Appeals.Footnote ⁶⁰ Conversely, if the trial court, by written decision, denies the defense motion to impose the sentence as proposed by the defense, the defense may file it again on appeal.Footnote ⁶¹ In addition to these remedies against decisions that reject the validation of the plea bargaining, the defense and the prosecutor may appeal a negotiated sentence to the Court of Cassation.Footnote ⁶² This right may be surprising from an Anglo-American perspective, especially as it concerns the prosecutor. To understand this peculiarity, it is essential to note that the Italian Code of Criminal Procedure adheres to a tradition established over a century ago which views the prosecutor as a promoter of justice rather than an accuser. From this perspective, the power to challenge a plea bargain before the Court of Cassation reflects the influence of the system’s inquisitorial tradition. Still, grounds for appeal to the Court of Cassation are limited and concern only the voluntariness of the decision to enter a plea bargain, a lack of correlation between the charge and the conviction, the legal classification of the offense, and the illegality of the sentence. In practice, most appeals against plea bargains are declared inadmissible by the Court of Cassation without an examination of the merits.Footnote ⁶³

The picture of Italian plea bargaining practices regarding publicity and transparency is somewhat opaque, though not entirely obscure. Certain elements of the plea bargaining process unquestionably come to the public’s attention. This is true for the judge’s final decision to accept the plea bargain and convict the defendant, because it constitutes a judgment which is delivered in the name of the Italian people and cannot be kept secret.Footnote ⁶⁴ Any interested person not formally involved in the proceedings may be authorized to make a copy of the decision with the judge’s permission. But to access the judicial document concluding the plea bargaining process, it is necessary to demonstrate a legitimate interest.Footnote ⁶⁵ For example, a media representative would be authorized to make a copy of the decision in a case that has received media coverage and public debate. In cases where the plea bargain is concluded during trial, the hearing is public.Footnote ⁶⁶ Therefore, those present may report on what happened and on the terms the prosecutor and defense agreed upon.

However, a considerable amount of information still remains inaccessible to the public, such as all meetings and negotiations preceding the discussion at the judicial hearing. The content of discussions held before reaching an agreement is covered by professional confidentiality and is not reported, recorded, or documented.Footnote ⁶⁷ The Code does not require documentation of informal meetings between the prosecutor and the defense regarding a possible plea bargain. This means that such meetings leave no written trace. It is extremely difficult to tell from the available documents whether the defendant was personally involved in the negotiations or relied entirely on their defense counsel. For these reasons, convictions resulting from plea bargains are always shrouded in uncertainty, as it is nearly impossible to know the specifics of how the negotiations took place or the reasons that led the parties to reach an agreement. This is why it is hard to deny that Italian plea bargaining significantly compromises procedural transparency.

Summarizing the picture outlined so far, we can conclude that Italian patteggiamento has positive and negative aspects. Among the positives, there is a predominant respect for legality, meaning that none of the parties involved, particularly the prosecutor, can adopt unscrupulous or aggressive attitudes. There are, however, some critical issues, such as a lack of transparency of the decision-making processes, minimal involvement of victims, and a very superficial assessment of the defendant’s willingness to enter into a plea bargain. However, the culture of regarding both judges and prosecutors as “servants of justice”Footnote ⁶⁸ tends to promote respect for the essential values of a fair trial. In summary, the system is viewed primarily through the lens of formality and legality rather than efficiency and management.

However, this dominant feature is also the main reason why plea bargaining remains relatively infrequent in the Italian system. Compliance with the legal requirements for patteggiamento is often complex, which can act as a deterrent. Furthermore, this special procedure is only available for cases punishable by no more than five years’ imprisonment. Finally, the defense often has an incentive to opt for a full trial, as even if things go badly and the defendant is convicted, they do not have too much to lose, because the sentence differential after trial is not likely to be significant.Footnote ⁶⁹

II. Informal Absprachen in Germany

Unlike Italy, which has in 1988 adopted features of the adversarial criminal process, Germany still adheres to the inquisitorial principle. One of the basic tenets of German criminal procedure law is the criminal court’s obligation to seek the truth, regardless of the wishes and possible activities—or lack thereof—of the parties. As Article 244(2) of the Criminal Procedure Code succinctly puts it, “[t]o investigate the truth, the court shall extend the taking of evidence to all facts and all evidence relevant to its decision.”Footnote ⁷⁰ The Federal Constitutional Court has declared that the court’s obligation to seek the truth is constitutionally mandated. Under the constitutional principles of the dignity of the person (Menschenwürde)Footnote ⁷¹ and the rule of law (Rechtsstaatlichkeit),Footnote ⁷² the state may punish only persons who are guilty of a crime;Footnote ⁷³ a court can therefore convict a defendant only after it has, by a conscientious search for the truth, eliminated any reasonable doubt about his or her guilt.Footnote ⁷⁴

An abbreviated process that relies exclusively on the defendant’s guilty plea or confession for a finding of guilt is difficult to reconcile with that principle. Nevertheless, in the 1980s reports surfaced about secret, informal talks between judges and defense lawyers about the possible outcome of trials.Footnote ⁷⁵ At that time, lengthy trials, especially of white-collar crime, became a burden on the court system, and a more assertive and knowledgeable defense bar discovered the potential offered by the Code of Criminal Procedure to complicate and draw out criminal trials.Footnote ⁷⁶ It was obvious, however, that secret “deals” of the type “confession for the promise of a lenient sentence” were in conflict with the German inquisitorial ideal calling for a complete and independent investigation of all relevant facts by the trial court. The Federal Constitutional Court clearly negated the acceptability of any “bargaining with justice” under the German version of due process (Rechtsstaatlichkeit).Footnote ⁷⁷

Yet, the practice of secret deals persisted.Footnote ⁷⁸ After some hesitation, the Federal Court of Justice in 1997 recognized the legality of such agreements between the parties and the court as long as certain guidelines defined by the Court were respected.Footnote ⁷⁹ In 2009, the legislature amended the Code of Criminal Procedure to authorize trial courts to make advance promises of a sentence within a certain range in case the defendant fulfilled certain conditions specified by the court, normally including a confession to some or all of the charges in open court.Footnote ⁸⁰ The German legislative model differs significantly from the notion of bargaining between the prosecution and the defense prevalent in the United States, Italy, and many other countries. The German legislature endeavored to graft an element of “understanding” (Verständigung) between the parties and the court onto the traditional trial procedure, thus providing for a greatly abbreviated trial with an outcome that has largely been agreed upon in advance. Due to this special structure of German “plea bargaining,” we will discuss it in more detail in Part C, Subsection II in the context of abbreviated trials.

One of the main goals of introducing legislation on sentence negotiations was to suppress the former irregular practice of backroom deals and to replace it with a transparent, well-regulated proceeding in open court. The idea was that openness and publicity are critical to protecting defendants from being unduly pressured by judges and defense lawyers into giving up their trial rights. The legislature therefore implemented a long list of rules meant to protect the transparency of the process, with the main emphasis on creating a complete public record of any negotiations and their results.

The main rules are:

• • There can be private discussions between the judges and the parties, but the presiding judge must announce in open court who took part in negotiations, what proposals were made, and what was the result of the negotiations. If negotiations are conducted in chambers during the trial, their contents and results must likewise be announced in open court. The presiding judge must also report the absence of any negotiations.Footnote ⁸¹

• • The absence of negotiations as well as the main contents and the outcome of any negotiations must be noted in the trial protocol.Footnote ⁸²

• • Victims of certain crimes against the person—e.g., sexual and violent offenses—have the right to join the prosecution as accessory prosecutors. If a victim has done so, he or she has the right to take part in the negotiations between the court and the parties.Footnote ⁸³

• • The presiding judge must inform the defendant under what circumstances the court can withdraw any sentence offer previously agreed upon—for example, if new facts have appeared or the legal assessment of the relevant facts has changed.Footnote ⁸⁴

• • If the court has withdrawn a previously made sentence offer, any confession the defendant had made in reliance on the offer cannot be used as evidence.Footnote ⁸⁵

• • Any waiver of the right to appeal declared by the defendant is invalid.Footnote ⁸⁶

• • Violations of these rules will normally lead to automatic reversal of a judgment on appeal.Footnote ⁸⁷

The very diligence of the legislature in this regard has, however, led to complaints that the proceedings are too complicated and prone to procedural error, possibly leading to reversal of the judgment on appeal.Footnote ⁸⁸ In a comprehensive survey of criminal court judges, prosecutors, and defense lawyers conducted in 2018, only 38% of the judges said that the statutory rules reflect the needs of practitioners, whereas a majority thought that complying with the rules takes too much time and contains too many “traps” that can lead to successful appeals.Footnote ⁸⁹

This survey also showed that the new law has not managed to eradicate informal “conversations” and “deals” among judges and defense lawyers. On the contrary: according to the survey, 38% of defense lawyers—but only 7% of judges—reported that informal deals occurred “very frequently” or “frequently” in their own practice.Footnote ⁹⁰ The largest portions of informal deals take place in cases of fraud, business crime, and drug crime.Footnote ⁹¹ Informal deals are mostly—according to the survey: in 75% of all such instances—initiated by defense lawyers; but judges also sometimes suggest an “unofficial” consensual disposition.Footnote ⁹²

Because informal deals do not have any legal basis, one might expect that such agreements are frequently broken. But in fact they seem to hold up in the great majority of cases: more than 90% of defense lawyers taking part in the survey agreed that judges “never” or “rarely” failed to honor their informally given promises.Footnote ⁹³

Regarding the different levels of courts, practitioners reported that informal negotiations take place most frequently in local courts (Amtsgericht),Footnote ⁹⁴ which have jurisdiction in cases of less serious crime and cannot impose sentences beyond four years of imprisonment.Footnote ⁹⁵ Not surprisingly, the most frequent subjects of informal deals are those that the Code of Criminal Procedure excludes from formal “understandings”:Footnote ⁹⁶ practitioners report that informal agreements often concern the charge of which the defendant will be convicted, the acceptance—or rejection—of a “particularly serious” or a “less serious” case, leading to differing sentence ranges,Footnote ⁹⁷ and the dropping of unrelated charges against the defendant by the prosecution.Footnote ⁹⁸ Asked why they resorted to illegal deals rather than formal understandings, practitioners most frequently cited “not enough time available,” “no need for taking evidence on all aspects of the case,” and “legal rules on formal understandings are too complicated.”Footnote ⁹⁹

These informal deals have certain features in common with American plea bargaining and Italian patteggiamento. As in Italy—but not always in the U.S.—German defense lawyers involved in informal deals normally are aware of the results of the police investigation and thus of the strength of the evidence against the defendant. There is no limit to the circumstances that can have an impact on the agreement, including the prosecutor’s or the defense lawyer’s interest in resolving other, unrelated charges. The “deal” remains a matter among the lawyers and the judges involved. It is concluded without any public scrutiny and without any participation of the victim, and the defendant himself plays only a very limited role in the process.

But there are also significant differences. In Germany, there is no formalized and recorded plea proceeding, but the defendant and his lawyer have only the individual judge’s privately spoken word to rely on when the defendant later makes a confession in open court. However, a trial is bound to take place, and the court cannot legally prevent the defense from offering additional evidence. And whereas in the U.S. and Italy the possibilities of appealing a judgment based on a plea agreement are limited, in Germany, a judgment based on an informal agreement would immediately be overturned on procedural grounds if the defendant chose to file an appeal.

In sum, participants in informal deals in Germany have all the advantages and disadvantages of negotiating outside the law: they can act quickly and without being bound by strict—in fact, by any—rules; but their agreement has no legal validity whatsoever.

III. Plea Bargaining in the United States

Among the three systems examined here, the United States maintains the most deeply entrenched practice of plea bargaining. Today more than 95% of convictions in the country are obtained through guilty pleas, the vast majority of which are the product of plea bargaining.Footnote ¹⁰⁰ Yet plea bargains have not always been the norm in U.S. criminal justice. In the early American republic, juries decided most felony cases, and negotiated guilty pleas were strongly disfavored. Towards the end of the nineteenth century, however, a practice of plea negotiations emerged, and by the early twentieth century, it accounted for most convictions nationwide.Footnote ¹⁰¹

The causes for the growth of plea bargaining remain a subject of debate. Scholars have pointed to a range of contributing factors. Some have emphasized overburdened dockets,Footnote ¹⁰² the growing procedural complexity of criminal trials,Footnote ¹⁰³ and the expansion of procedural protections for defendants.Footnote ¹⁰⁴ Others attribute the growth of plea negotiations to professionalized law enforcement and prosecution,Footnote ¹⁰⁵ the incentive to maintain high conviction rates,Footnote ¹⁰⁶ a desire to mitigate the harshness of prescribed penalties,Footnote ¹⁰⁷ and the appeal of convenience for the parties and judges alike.Footnote ¹⁰⁸

Even as plea bargaining spread across the United States, for several decades its legality remained in question. In 1970, however, the Supreme Court affirmed that a negotiated guilty plea could be obtained consistent with due process, as long as certain minimum conditions were met.Footnote ¹⁰⁹ One year later, in Santobello v. New York, the Court went further, declaring that plea bargaining was an essential element of the effective administration of criminal law and should be encouraged.Footnote ¹¹⁰

Because the Court regards plea bargaining as indispensable to the efficient processing of criminal cases, it has placed few limits on its operation. Unlike in Italy, plea bargains can be used to resolve any kind of criminal case, including capital ones. And again in contrast to the Italian system, defendants need not be represented by counsel to engage in plea negotiations, although indigent defendants facing possible imprisonment are entitled to appointed counsel.Footnote ¹¹¹

Prosecutors tend to drive plea negotiations; while defense attorneys may be the first to approach prosecutors to discuss the possibility of a plea bargain, defendants have no right to receive a plea offer. Unlike in Italy, if prosecutors refuse to plea bargain, they do not need to explain their decision. When prosecutors decline to bargain, defendants can proceed to trial or tender an “open” guilty plea to the court. In practice, judges reward such guilty pleas with sentencing reductions.Footnote ¹¹² But the concession that the defendant will receive by pleading open is uncertain, so the decision carries some risk. Moreover, the concessions defendants receive after an open plea are typically lower than in plea bargains with prosecutors, as judges generally cannot engage in charge bargaining.Footnote ¹¹³

The primary constitutional constraint on guilty pleas is that they must be voluntary and knowing.Footnote ¹¹⁴ But the threshold for a voluntary guilty plea is very low. Substantial plea discounts—even those reducing charges from capital to non-capital—are not considered unconstitutionally coercive.Footnote ¹¹⁵ Likewise, a prosecutor’s explicit threat to escalate charges against a defendant who chooses to go to trial does not automatically invalidate a subsequent guilty plea.Footnote ¹¹⁶ Courts have also held that “exploding offers,” which expire quickly, and “wired pleas,” in which an offer to one defendant depends on the acceptance of the offer by another co-defendant, often a family member, are not unduly coercive.Footnote ¹¹⁷ By contrast, such deals would be clearly illegal in ItalyFootnote ¹¹⁸ and would not be enforceable in Germany.Footnote ¹¹⁹

Similarly, the “knowing” requirement imposes few substantive obligations. It primarily requires courts to ensure that defendants understand the essential elements of the crime to which they are pleading guilty and the direct consequences of the guilty plea.Footnote ¹²⁰ By contrast, at least as a constitutional matter, prosecutors are not required to disclose evidence relevant to the case before a guilty plea, even evidence potentially favorable to the defendant.Footnote ¹²¹ In this respect, American defendants are in a worse position than their Italian and German counterparts, who receive a copy of the entire investigative file as soon as the investigation is complete and charges are filed.Footnote ¹²²

In most U.S. jurisdictions, criminal procedure rules also require courts to confirm that guilty pleas are factually based. Yet the requirement is not a rigorous one, and courts rarely probe into the details of the underlying criminal conduct.Footnote ¹²³ Furthermore, there is no requirement that investigations be complete before the entry of a plea,Footnote ¹²⁴ and early pleas tend to be rewarded with more generous sentencing discounts, which discourages factual inquiries by the defense.Footnote ¹²⁵ As a result, fact bargains are common, and even entirely fictional guilty pleas—to crimes that the defendant did not commit—have been accepted by courts.Footnote ¹²⁶ Finally, defendants in most U.S. jurisdictions can plead guilty while refusing to admit guilt or even asserting their innocence, as long as the court independently finds that the guilty plea is factually supported.Footnote ¹²⁷ The military justice system, with its emphasis on more thorough inquiry into the facts at the plea hearing and refusal to accept a guilty plea if a possible defense exists, offers an exception to the norm in the United States, and scholars have cited it as a model for reform efforts.Footnote ¹²⁸

Judges in most American jurisdictions—unlike in Germany—tend to play a relatively passive role in plea negotiations. About a third of U.S. jurisdictions, including the federal, ban judicial participation in plea negotiations entirely.Footnote ¹²⁹ The rest either permit it or silently tolerate it, though many judges only become involved if invited by the parties. In permissive states, some judges become active participants in the negotiations, sharing their own position on the case and mediating between the parties. But many assume a more restrained role and only offer their views on a proposed agreement if asked by the parties.Footnote ¹³⁰

Judges tend to be more proactive in reviewing the sentences negotiated by the parties. When it comes to sentencing, most plea agreements involve nonbinding recommendations presented by the parties to the court. In a large minority of cases, judges depart from the parties’ sentencing recommendations.Footnote ¹³¹ In the small minority of cases in which the parties negotiate “stipulated sentence” agreements, judges may not depart from the negotiated sentence once they have accepted the agreement. While judges maintain the authority to reject the agreement itself and return the parties to the negotiating table, they make this choice very rarely, usually if they believe that the agreement significantly understates the seriousness of the offense.Footnote ¹³²

Judicial influence is more limited over charge bargains, in which the defendant pleads guilty in exchange for the prosecutor reducing, dismissing, or agreeing not to bring certain charges.Footnote ¹³³ Because charging is traditionally a prosecutorial function,Footnote ¹³⁴ judges may only reject charge bargains for reasons specific to the circumstances of the case and when the rejection would not “frustrate prosecutorial independence.”Footnote ¹³⁵ In this respect, U.S. judges’ discretion over negotiated outcomes is more constrained than that of their Italian and German counterparts, who can recharacterize charges to better reflect the facts of the case.Footnote ¹³⁶ Even when judges accept negotiated charge bargains, however, they still get to select the sentence, which may partially offset charge manipulations by the prosecutor. Although outright rejection of plea agreements is uncommon, judges also shape negotiations indirectly because the parties try to anticipate how a judge is likely to react to proposed plea agreements.Footnote ¹³⁷

While victims are not directly involved in the negotiation process, many prosecutor’s offices have policies requiring prosecutors to consult victims before making plea offers, and an increasing number of state and federal laws require notification or consultation of victims.Footnote ¹³⁸ Empirical work suggests that prosecutors give weight to victims’ views, but ultimately make decisions based on what they perceive is “best for the case.”Footnote ¹³⁹ In some U.S. jurisdictions, victims have also gained the right to present their views to the court at plea hearings, but even when that occurs, judges rarely change their decisions based on the victims’ input.Footnote ¹⁴⁰ No jurisdiction grants victims a veto over plea decisions. One concern is that if victims’ views were to be given dispositive weight, this may privilege victims who are wealthier or more outspoken and conflict with equal treatment under the law.Footnote ¹⁴¹ While victim influence over negotiations is in practice still minimal,Footnote ¹⁴² the increased requirements to involve victims provide broader protections of victims’ interests in plea bargaining than exists in the Italian system, which often entirely excludes victims from the process. In some respects, victims in the U.S. also have greater opportunities than their German counterparts to make their views known about plea bargains.Footnote ¹⁴³ This contrast is notable as European systems have historically provided more opportunities for victims to influence charges and participate at trial.Footnote ¹⁴⁴

Because neither victims nor the public—and often not even judges—are involved in the negotiations, commentators have criticized plea bargaining for its lack of transparency.Footnote ¹⁴⁵ Negotiations occur in courtroom hallways, attorneys’ offices, by phone or email—and out of the public eye. Plea offers are often not documented, and even if they are, the plea record usually stays in the file of the prosecutor, which is closed to anyone else. Although most U.S. jurisdictions now require that final plea agreements be in writing and placed on the record, that is not always done in practice.Footnote ¹⁴⁶

Some transparency is provided at the public plea hearing, which is held to ensure that the guilty plea is voluntary, knowing, and factually based. But hearings tend to be brief and perfunctory, and they often fail to reveal key elements of the negotiations and concessions that shaped the outcome of the case.Footnote ¹⁴⁷

The opacity of plea bargaining has been defended on the grounds that it encourages greater candor between the parties and allows prosecutors to exercise mercy without concern that they would be publicly criticized for it.Footnote ¹⁴⁸ Secrecy is also prized in cases where defendants cooperate with law enforcement and must be protected from the risk of retaliation.Footnote ¹⁴⁹ While these concerns are valid, scholars and policymakers are increasingly advocating for greater transparency of plea bargaining to improve the fairness and legitimacy of the practice.Footnote ¹⁵⁰

Another critique of U.S. plea bargaining is that plea agreements typically include waivers of rights to appeal the judgment and sentence.Footnote ¹⁵¹ By largely insulating plea bargains from judicial review, negotiated appeals waivers allow procedural failures, factual inaccuracies, and prosecutorial overreach in the process to remain unchecked.Footnote ¹⁵² For all these reasons, the desire to preserve the right to appeal is often a decisive factor in defendants’ decision to reject a plea bargain and opt for an open plea to the court—that is, pleading guilty without an agreement with the prosecution—or a bench trial. These alternatives to plea bargaining, and how they compare to plea bargaining in terms of efficiency and fairness tradeoffs, are discussed at greater length below in Part C, Subsection III.

IV. Comparative Remarks

We have seen that agreements between the parties, or the parties and the court, about the disposition of criminal cases play rather different roles in the three legal systems. In the United States, negotiations and agreements on the prosecutor’s charges and the ensuing sentence are the routine, default way of resolving cases, and there are few rules for ensuring the fairness and accuracy of the results. Prosecutors may offer significant charge and sentence discounts and place strict time limits on plea offers, while defendants lack access to the evidence and face unpredictable trial outcomes and post-trial sentences—a combination that can lead even innocent defendants to plead guilty.Footnote ¹⁵³

Italy, by contrast, has a closely regulated procedure of sentence bargaining, with a sentence discount determined by statute and, at least theoretically, close judicial supervision of the bargain presented by the prosecutor and the defense lawyer. The principle of legality prohibits charge bargains and exploding offers, and it even limits the prosecutor’s discretion in accepting or rejecting the defense’s sentence proposals. Although the Italian-style patteggiamento appears to provide a viable compromise between the ideals of justice and procedural economy, its actual frequency is limited, possibly because of the competition of other shortcuts to imposing criminal sanctions.

In Germany, “free-floating” agreements on possible sentences between the parties and the judges are illegal, but nevertheless seem to be practiced to some extent in lower courts. Safeguards such as broad and early access to the file by the defense, a duty to seek the truth for both prosecutors and judges, and the absence of charge bargainingFootnote ¹⁵⁴ limit some coercive practices, but informal plea bargains still pose significant risks of unfairness. As in any black market, the weakest party, the defendant, is unable to enforce a “deal” if, for whatever reason, the prosecutor or the judge do not keep their promises.

Finally, the systems of “plea bargaining” in our three systems share certain procedural deficits. Plea negotiations in the U.S., patteggiamento in Italy, and off-the-books bargaining in Germany all suffer from a lack of transparency and limited appellate review. Victims are entirely excluded from the process in Italy as a legal matter and often excluded in practice in Germany and the U.S. And although full disclosure of the evidence occurs in Italy and Germany after the investigation is over, if an agreement is reached before that point—as sometimes happens in Italy—disclosure is significantly more limited. In Italy, the defendant does not need to formally admit guilt and may therefore continue to contest guilt publicly, undermining the ability of the process to clarify the facts. And while Italian judges are in theory supposed to examine the factual basis for a negotiated outcome more thoroughly than their U.S. counterparts, this does not always occur in practice. As a result, all three systems tend to shortcut the search for truth in their “plea bargaining” procedures.

The main difference between the American and the “Continental” approaches to plea bargaining may be explained by the differing roles of the judge in the criminal process. While judges in the U.S. adversarial system generally defer to the propositions of the parties and intervene only where the parties fail to agree with each other, judges in Italy and Germany see their role in actively working toward a fair result in line with the framework set by substantive and procedural law. In Italian patteggiamento, the judge therefore has the last word and can reject any consensual disposition proposed by the parties. In Germany, judges are involved throughout the process and determine both the ultimate charges and sentence. This systemic difference also explains some typical deviations of the Continental ways of consensual disposition from the American model, such as the absence of charge bargaining. Judges in Italy and Germany are not bound by the prosecutor’s legal characterization of the relevant facts, and they retain an obligation to make sure that the conviction reflects the facts as they appear from the trial or (in Italy) the pretrial investigation.

Given these large or small deficiencies of “plea bargaining” in our jurisdictions, we ask next whether abbreviated trials offer a useful alternative.

I. Giudizio Abbreviato in Italy

Even though a full trial is held in more than 50% of cases in Italy, the abbreviated trial (giudizio abbreviato) is a special procedure that has been successful, at least when looking at the data concerning the frequency of its use.Footnote ¹⁵⁵ This special procedure drew inspiration from the English summary trial as it existed at the time the 1988 Italian Code of Criminal Procedure was enacted.Footnote ¹⁵⁶ However, there is a significant difference between the two. In the English system, the jury has traditionally served as the final adjudicator in a full trial, which is not the case in Italy.Footnote ¹⁵⁷

Yet the abbreviated trial shares an important characteristic with the English summary trial: the abandonment of the principle of orality and the ability to make extensive use of hearsay evidence. A full trial in both jurisdictions requires that all evidence be presented in person in court in an adversarial manner—leaving it to the parties to present and cross-examine witnesses, while relegating the judge to the relatively marginal role of an umpire. There is no such presentation of evidence and no confrontation of adverse witnesses by the defense in an Italian abbreviated trial, which is dominated by the judge. Furthermore, unlike at ordinary trials, the rule against hearsay does not apply in abbreviated trials.Footnote ¹⁵⁸ By opting for this procedure, the defense chooses that the case be adjudicated based on the information in the prosecution file, which contains all records, evidence and testimonial statements collected by the police and the prosecutor during the investigation.Footnote ¹⁵⁹

Those familiar with the old inquisitorial system may regard this as a return to the past when, at the end of an investigation, the prosecutor—unless an investigating judge was involved—assembled all the data and records in the file and requested the court to hold a trial. The prosecutor’s file usually constituted the main evidentiary basis—often the only basis—for adjudication at trial. The same still occurs in the current French system in which the inquiry (l’enquête) is conducted solely by the prosecutor, unless an investigating judge is involved.Footnote ¹⁶⁰

But why should a defendant give up his confrontation right? In straightforward terms, because the system rewards such a choice. If the defendant is found guilty, the law automatically reduces the sentence by one-third to reward the defendant for choosing an abbreviated trial.Footnote ¹⁶¹ In practice, the judge first calculates the appropriate punishment for the case according to the law, as would happen in a full trial. Then, the judge must reduce the sentence by one-third as a mitigating circumstance for choosing the abbreviated proceedings. The rigid and inflexible nature of the reduction confirms the general reluctance to grant judges discretion in determining sentences. This reluctance is closely linked to the idea of strictly applying the principle of legality, even when deciding how severely to punish a convicted person. Of course, judges can circumvent some of the obstacles set by the legislature. For example, they can start with a harsher punishment than they would have applied to neutralize the effects of a mitigating factor resulting from the choice of procedure.

Giudizio abbreviato can be used in all cases, except if the case involves a crime punishable by life imprisonment. In those cases, the only available option is a full trial before the Court of Assizes. This limitation did not exist when the abbreviated trial was first introduced. Until 2019, a defendant who faced life imprisonment could reduce the maximum sentence that could be imposed on conviction to 30 years, simply by opting for giudizio abbreviato.Footnote ¹⁶² This situation was subject to severe public criticism, as citizens did not appreciate the de facto repeal of life imprisonment carried out without the necessary broad public debate. After several unconvincing attempts to remedy this problem by amendments to the Code of Criminal Procedure and after a ruling against Italy by the European Court of Human Rights,Footnote ¹⁶³ the legislature in 2019 decided to eliminate the option of summary proceedings when life imprisonment is at stake.Footnote ¹⁶⁴

The legislative reform appeared to have two objectives. The first was to prevent defendants charged with serious offenses from avoiding a life sentence by opting for the abbreviated trial. The second was to make sure that the most serious offenses, which carry life sentences, are always tried by the Court of Assizes. This court is composed of professional judges and lay jurors, providing better representation of the community.Footnote ¹⁶⁵

The right to request an abbreviated trial lies solely with the defense, and the prosecutor has no say in the matter.Footnote ¹⁶⁶ The judge’s control over the admissibility of this special procedure is limited to formal aspects, and in practice the judge simply verifies that the applicant is authorized to request an abbreviated trial—in other words, that the request is submitted by someone who is legally authorized to represent the defendant—and that the application has been submitted within the time limits established by law, that is, before the end of the preliminary hearing.Footnote ¹⁶⁷

The defense may submit a “simple” or a “conditional” application. By a simple application, the defendant asks to be adjudicated on the evidence assembled by the prosecutor and the police. Here, the control of the judge is highly simplified and limited to verifying the applicant’s authorization and the timeliness of the request.Footnote ¹⁶⁸ By contrast, a conditional application requests the judge to admit some evidence—indicated in the application—in addition to the information and the records collected in the prosecution file. In that case, the judge must determine whether the evidence requested is necessary and compatible with the need to conduct the procedure expediently.Footnote ¹⁶⁹ However, recent legal amendments which implemented prior case law significantly limited the court’s right to reject a defense request based on considerations of expediency.Footnote ¹⁷⁰

Unlike plea bargaining, the abbreviated trial is a genuine trial conducted in the traditional inquisitorial style. Once the trial has begun, the judge—usually the judge who conducts the preliminary hearing, because this is where the abbreviated trial mainly takes place—makes all the decisions. The judge admits evidence in addition to that contained in the prosecutor’s file, interrogates the defendant and witnesses as necessary, and makes the ultimate decision on the defendant’s guilt and sentence.Footnote ¹⁷¹ An abbreviated trial may well result in the defendant’s acquittal.Footnote ¹⁷² If the defendant is convicted, the judge grants a one-third reduction of the sentence that would be imposed after an ordinary trial.Footnote ¹⁷³ In 2022, the legislature introduced a provision allowing a further reduction of one–sixth if the defendant waives the right to appeal, to make the procedure more attractive.Footnote ¹⁷⁴

The alternative presented by the law—to opt for a full trial or an abbreviated procedure—is greatly appreciated by defense lawyers. It would be wrong to assume that only guilty defendants opt for the abbreviated procedure in cases that are too serious to allow for patteggiamento. This is certainly a possible scenario, but it is not the only one. The abbreviated procedure is also appealing to the defense if the prosecutor and police have conducted an inadequate investigation and gathered little evidence. One might expect that in such situations the case would never go to trial because the prosecutor would be more likely to dismiss it. In practice, however, cases that are weak due to a poor investigation are often nonetheless prosecuted because obtaining a dismissal is complicated and involves strict judicial oversight of the preliminary investigation and a potential challenge by the victim.Footnote ¹⁷⁵ Conversely, prosecution is favored by the system, which, in the name of mandatory prosecution, prefers a trial ending in acquittal rather than a dismissal due to poorly conducted investigations. For these reasons, a skilled defense lawyer can assess whether their client is more likely to be acquitted after a full trial or via the abbreviated procedure. At trial, things may change because all the witnesses are present in person, and one never knows what may happen during their examination. By contrast, in the abbreviated procedure, the evidentiary setting is more stable, and there are fewer twists and turns because new evidence is introduced far less frequently.

There are yet other reasons that may induce defense lawyers to opt for abbreviated proceedings. Whereas at trial, the defense would have to call witnesses to present the results of its investigation, these results could be introduced more easily, in documentary form, at the abbreviated proceedings. For instance, defense counsel may conduct a private investigation and present its results as evidence to the prosecutor or judge at the hearing, immediately before the commencement of the abbreviated trial.Footnote ¹⁷⁶ Evidence offered by the defense has the same legal value as evidence produced by the prosecutor and police.

Finally, abbreviated trials are becoming more appropriate as certain criminal cases—especially of white-collar crime—increasingly feature more documentary evidence and digital data rather than oral evidence subject to cross-examination. In those cases, the defense typically focuses on commenting on this type of evidence rather than on cross-examining witnesses; the abbreviated trial hence appears to be a more fitting choice.

It is also worth noting that the role of the victim is better protected in abbreviated proceedings than in plea bargaining. If the victim intends to claim compensation for damages caused by the crime through a civil action, they can choose whether to do so in the criminal proceedings or bring the case in civil court.Footnote ¹⁷⁷ If they accept the abbreviated proceedings, they can obtain compensation for damages—even if the defendant is acquitted.Footnote ¹⁷⁸ The victim can also, without any adverse consequences, withdraw from the criminal proceedings and bring an action for damages in civil court.

As the abbreviated trial constitutes a genuine trial in all respects, albeit conducted in an inquisitorial manner, the defense obtains full access to the evidence. Full disclosure of the prosecution file to the defendant and the victim occurs at the latest ten days before the beginning of the preliminary hearing.Footnote ¹⁷⁹ The defense decision on whether to ask for an abbreviated trial thus is an informed strategic choice, not a blind one.

One potential weakness of the procedure is the verification of the defendant’s willingness to choose this option, which is usually conveyed to the court by defense counsel. The observations made above regarding plea bargaining—that judges conduct only a perfunctory review of voluntariness—also apply here.

Defendants demanding an abbreviated trial need not confess guilt. They have the right to remain silent and need not submit to interrogation.Footnote ¹⁸⁰ The abbreviated procedure thus does not have a predetermined outcome. It can be chosen not only by defendants who believe they are most likely to be convicted but also by those who intend to exploit shortcomings in the prosecutor’s case.

The judgment issued at the end of the abbreviated procedure can ordinarily be appealed by the parties, although there are some limitations compared to a trial judgment. In particular, the prosecutor cannot appeal a conviction—except where the judge has modified the legal classification of the charges—and the defense cannot appeal an acquittal. It is worth noting that the defendant, by opting for an abbreviated trial, waives the right to challenge procedural errors that may have occurred during the investigation phase. If any such errors occurred, they are deemed harmless, except the most serious procedural sanctions, such as absolute nullities and absolute rules of exclusion of evidence.Footnote ¹⁸¹

Regarding transparency, the judgment in abbreviated proceedings is more satisfactory than plea bargaining. After all, the decision that concludes the proceedings is a genuine judgment, pronounced in the name of the Italian people, and accessible to the media and the public.Footnote ¹⁸² As the judge must carefully document the legal and factual reasons for his or her conclusion, the public can form a reasonably well-founded idea of which evidence played a decisive role in the outcome, and the court’s decision can also be criticized on this basis. However, abbreviated proceedings take place at the preliminary hearing, which is held in chambers without public access.Footnote ¹⁸³ As a result, in cases where the evidence may harm the defendant’s reputation, the lack of publicity makes the abbreviated proceeding particularly attractive for the defense.

II. Verständigung in Germany

Italy’s adoption of abbreviated forms of arriving at criminal judgments in 1988 was part of a widespread movement toward permitting such procedural shortcuts in Europe and beyond.Footnote ¹⁸⁴ Germany hesitated for a long time before it joined this trend and, by a reform law of 2009, sought to integrate an element of consensual decision-making into the inquisitorial truth-seeking trial. Since then, § 257c of the Code of Criminal Procedure regulates how an “understanding” (Verständigung) between the parties and the court on the sentence can be reached. If practice follows the statutory scheme, it operates as follows. First, the presiding judge, either before or during the trial, invites the parties to a meeting in chambers. There, he or she discusses the options available and eventually proposes to impose a sentence within a specified range if the defendant fulfills certain conditions, most frequently by confessing to all or some of the charges. If the defense lawyer, possibly after a reduction of the proposed sentence range, accepts the court’s offer and the public prosecutor assents to the “understanding,” the sentence agreement becomes binding upon the court.Footnote ¹⁸⁵ If the defendant keeps his promise and admits guilt in open court, the court is obliged to hand down a sentence within the range previously agreed upon, unless new facts have appeared or the court comes to a different conclusion regarding the applicable law.Footnote ¹⁸⁶ The court can withdraw the sentence offer even if the judges themselves had made a mistake as to the applicable law or had overlooked relevant facts.Footnote ¹⁸⁷ If the court withdraws the original sentence offer, the trial continues, but any confession the defendant had made to fulfill his part of the deal cannot be used against him.Footnote ¹⁸⁸

The applicable criminal law is not subject to bargaining. The court thus cannot promise not to convict the defendant of a particular offense or not to apply statutory aggravating circumstances if the facts presented in court indicate that the aggravated offense had indeed been committed by the defendant.Footnote ¹⁸⁹ Similarly, in felony cases, prosecutors are bound by the rule of mandatory prosecution and have no discretion to dismiss charges on policy or expediency grounds.Footnote ¹⁹⁰

The law governing “understandings” was promptly challenged by defendants who claimed that the legal arrangement violated the principle of Rechtsstaatlichkeit (due process) as guaranteed by the Basic Law. The Federal Constitutional Court somewhat reluctantly affirmed the constitutionality of the lawFootnote ¹⁹¹ but emphasized the need for trial courts to strictly comply with all statutory requirements and precautions, especially the court’s continuing obligation to make certain that the judgment reflects the true facts of the case.Footnote ¹⁹² Before deciding the case, the Federal Constitutional Court had requested an empirical study of negotiation practices in German trial courts.Footnote ¹⁹³ As this study showed less-than-perfect compliance by judges and lawyers with the demands of the law, the Federal Constitutional Court mandated that the legislature continually monitor the application of the law in practice, with a view toward amending or abolishing the relevant provisions if there were still abuses, in particular “informal” deals outside the strictures set out by the legislature.Footnote ¹⁹⁴

Before looking into the data on current negotiation practices, let us consider how the process would play out in a hypothetical criminal case involving an alleged sexual assault punishable by imprisonment between one and fifteen years.Footnote ¹⁹⁵ The defendant, through his lawyer, claims that the sexual acts were consensual, but refuses to make a statement. The procedure leading to a negotiated outcome would typically take the following course.

At the beginning of the trial, the prosecutor reads out the charges against the defendant, and the presiding judge of the court panel—consisting of three professional and two lay judges—asks the defendant whether he wishes to make a statement. The defendant says “no.” The defense lawyer then asks the presiding judge for a private conference in chambers. The conference takes place immediately, with the presiding judge, the prosecutor, and the defense lawyer participating. The defense lawyer has read the complete prosecution file before trialFootnote ¹⁹⁶ and is thus aware of any potential weaknesses in the case against his client. After some debate on the strength of the evidence, the defense lawyer asks the judge what sentence his client could expect if he confessed to the offense. The judge responds that he would have to discuss this with the other judges but that he personally believes that a suspended prison sentence between twelve and eighteen monthsFootnote ¹⁹⁷ would be sufficient if the defendant expresses remorse and apologizes to the victim. The defense lawyer is happy. The prosecutor accepts the judge’s proposal.

After discussing the situation with his four fellow judges, the presiding judge re-opens the court session and reports what were the main points of discussion and the result of the private conference, declaring that in case of a full confession the defendant could expect a suspended prison sentence between twelve and eighteen months.Footnote ¹⁹⁸ The defense lawyer thereupon reads a pre-formulated statement on behalf of the defendant, stating that he had indeed used some force and touched the victim sexually against her will. The defendant says that he agrees with his lawyer’s statement and feels sorry for what he did to the victim. The presiding judge asks the parties whether they propose any additional evidence to be taken. There is no response, the court briefly retires for deliberations, and then the presiding judge pronounces the judgment in open court. The defendant is convicted of sexual assault and sentenced to fifteen months imprisonment, with execution of the sentence suspended. The judge then informs the defendant that he has the right to file an appeal against this decision.Footnote ¹⁹⁹

Several features of this proceeding deserve comment. First, there are no negotiations between the prosecutor and the defense lawyer before or after the filing of formal charges. As mentioned above, the applicable criminal law is not subject to negotiation.Footnote ²⁰⁰ Any “charge reduction” by the prosecutor would indeed be legally inconsequential because the court is not bound by the prosecutor’s legal characterization of the facts.Footnote ²⁰¹

The court-centered German criminal procedure permits negotiations between the court and the defendant’s lawyer, because it is only judges who can make any assurances as to the sentence. The prosecutor needs to be involved in these negotiations because he holds a veto power: an agreement between the court and the defense does not become binding upon the court unless the prosecutor assents.Footnote ²⁰² The victim will be invited to participate in the negotiations only if he or she has joined the public prosecutor as an accessory prosecutor. This option exists for survivors of homicide victims and for victims of certain crimes against the person—especially sexual and assault offenses.Footnote ²⁰³ Accessory prosecutors must be given an opportunity to voice their opinion, but they cannot veto an agreement reached by the court and the lawyers.Footnote ²⁰⁴

Barring exceptional circumstances, negotiating with the court makes sense for the defense only if the defendant has not yet made an admissible confession. If a prior confession can be introduced at trial,Footnote ²⁰⁵ the defense normally does not have any useful bargaining chips. This is one factor contributing to the limited use of the Verständigung procedure in Germany.

Negotiations can take place during the trial, but even earlier, as soon as the court has accepted the accusation and has set the case for trial, after a preliminary examination of the probability of a conviction.Footnote ²⁰⁶ According to a survey of judges, prosecutors, and lawyers, most negotiations take place after the trial has started.Footnote ²⁰⁷ Negotiations normally are not conducted in open court, although this option is not ruled out by law. But if negotiations have taken place in chambers or privately before or during trial, the presiding judge is obliged to disclose in open court the participants and the main contents—including possible results—of the discussions. This obligation exists even if the negotiations did not lead to an agreement.Footnote ²⁰⁸ The official written record of the trial must contain this information.Footnote ²⁰⁹

Formally, the statutory provision authorizing “understandings”—§ 257c of the Criminal Procedure Code—does not provide for any negotiation. The “understanding” is conceived of as a conditional prediction by the court of a sentence within a certain range, formulated on a “take it or leave it” basis.Footnote ²¹⁰ The parties are, however, afforded an opportunity to comment on the court’s statement, and the judge is not precluded from adjusting the sentence offer in light of the parties’ comments.Footnote ²¹¹ Negotiations are normally conducted in private, so the public does not learn how strong each party’s influence was in a particular case. But because a consensual outcome radically shortens the trial and therefore is in the court’s interest, it is to be expected that judges are open to compromise as long as they regard the eventual sentence as reasonably reflecting the seriousness of the offense. The provision conditioning the validity of an agreement on the prosecutor’s assent is meant to preclude any irresponsible deals between judges and defense lawyers.

Any legally valid “understanding” must be about a sentence range rather than a fixed sentence.Footnote ²¹² The rationale for this rule is to leave open to the court the possibility of considering additional facts or legal arguments that may appear during the remainder of the trial.Footnote ²¹³ According to the majority view, a promise of a “fixed” sentence is grounds for reversal of the ensuing judgment on appeal.Footnote ²¹⁴ The legal prohibition on promising a fixed sentence is however not always honored in practice. An empirical survey found that judges sometimes offer a particular sentence or only name an upper limit.Footnote ²¹⁵ Some courts tend to formally announce a sentence range but routinely impose the actual sentence at the lowest—or, alternatively, at the highest—point of the range indicated.Footnote ²¹⁶

The verdict (Schuldspruch) cannot be subject to negotiations and agreements.Footnote ²¹⁷ This provision excludes any “charge bargaining” with the court. The Federal Constitutional Court has extended this prohibition further by ruling that the application of special sentence ranges for undetermined “less serious” cases, as they exist, for example for robbery (Penal Code (StGB) § 249 para. 2) or sexual assault (StGB, § 177 para. 9), likewise cannot be subject to negotiation.Footnote ²¹⁸ In interviews, 37% of judges nevertheless said that they had “always” or “frequently” engaged in negotiations on the application of reduced statutory sentence ranges.Footnote ²¹⁹ If the trial court is a panel consisting of several professional and lay judges, any promise as to the sentence must be made by the panel. However, it is normally the presiding judge who conducts the negotiations with the parties; if an agreement has been reached there, he will present it to his fellow judges, who usually go along.Footnote ²²⁰ This proceeding does not violate the law.

The court is obliged to impose a sentence within the proposed range if the defendant and the prosecutor declared their assent and if the defendant performed the acts he had promised.Footnote ²²¹ In most cases,Footnote ²²² the defendant offers to make a confession, covering all or part of the charges. In complex cases, the extent and limits of the confession can be subject to lengthy negotiations between the court and the parties. In practice, the pre–formulated confession is often read out by the defense lawyer, and the defendant limits himself to declaring that the facts presented by his lawyer are true.

It is an open question whether it is sufficient that the defendant, after having heard the charges read out by the prosecutor at the beginning of the trial, just says “That’s all true” or “I don’t object.” Such so-called Formalgeständnisse (formal confessions) are not infrequent,Footnote ²²³ and they are probably acceptable. But the Federal Constitutional Court ruled in 2023 that the trial court is required to take additional evidence at trial in order to provide a sufficient factual basis for a finding of guilt if the defendant has only made a formal confession.Footnote ²²⁴ If a court fails to do so, the judgment is likely to be reversed on appeal as violating the court’s obligation to search for the truthFootnote ²²⁵ and indirectly the guarantee of the freedom of the individual in Article 2 of the Basic Law (Grundgesetz, GG).Footnote ²²⁶

The defendant cannot waive the right to appeal against a judgment which has been preceded by an “understanding.”Footnote ²²⁷ In practice, such promises are nevertheless made sometimes,Footnote ²²⁸ but they are not legally valid.

One critical aspect of “understandings” is the voluntariness of the defendant’s promise to make a confession. In early debates about the desirability of allowing sentence negotiations, one concern was that judges might exert undue pressure by pointedly telling the defendant what his sentence might be if he did not confess and instead took his chances with a full-fledged trial.Footnote ²²⁹ The Federal Constitutional Court therefore emphasized that trial judges must neither use threats of a disproportionately severe punishment nor promises of a disproportionately lenient sentence to make the defendant confess.Footnote ²³⁰ Although there is no statutory limit on the size of a sentence discount in “understandings,” the normal rate seems to be a 20–33% reduction from the sentence contemplated if the defendant did not confess.Footnote ²³¹ If a prison sentence does not exceed two years, the court may suspend execution of the sentence (Penal Code (StGB) § 56). This option is also subject to negotiation. A significant number of judges let defendants know what sentence would await them if they did not accept the court’s sentence offer,Footnote ²³² thus opening what is called the “sentence scissors” (Sanktionsschere) in order to persuade defendants to accept the sentence suggested by the judge.

The legislative regulation of sentence negotiations was based on the notion that openness and publicity are the best safeguards against coercion of defendants by lawyers and judges.Footnote ²³³ As discussed in Part B, Subsection II, the strict rules adopted to guarantee the transparency and documentation of negotiations have led to complaints that the proceedings are too complicated and prone to technical violations. The impression that formal “understandings” are much less popular among German judges and lawyers than they are in Italy and the United States is reflected in official statistics: In 2023, only 12% of district court judgments were based on an “understanding” in accordance with § 257c StPO; and in local courts, the portion of formally negotiated judgments was only 1.5%.Footnote ²³⁴ These statistics correlate with the empirical findings reported in Part B, Subsection II, that especially in local courts informal “deals” between lawyers and judges still persist.

Another explanation for the low incidence of formal “understandings” is the fact that German law offers a much less onerous way of disposing of minor crimes. If the expected penalty is only a fine or a suspended prison sentence of up to one year, the prosecutor can draft a Strafbefehl (penal order), which is then forwarded to the local court judge. If the judge signs the penal order (and judges rarely decline to do so), it obtains the legal validity of a judgment and becomes final unless the defendant files an appeal and demands a trial.Footnote ²³⁵ In 2023, this German version of a guilty plea—effectuated by the defendant’s silent acceptance of the penal order—led to conviction in 48% of all Local Court cases. By contrast, 52% of all cases were adjudicated in a trial either based on the prosecutor’s formal accusation or on the defendant’s appeal against a penal order.Footnote ²³⁶

In conclusion, the German model of shortened trials based on negotiations suffers from the birth defect that the underlying idea of a “guilty plea” does not fit with the German “inquisitorial” model emphasizing the trial court’s obligation to search for the truth. The legislature has nevertheless created a procedural device that undoubtedly has certain advantages when compared with U.S.-type unregulated plea bargaining. The defense is fully informed of the available evidence; the involvement of the judge allows for transparency and predictability of the outcome of negotiations; the differential between sentences to be expected with and without trial is limited; the applicable law is not subject to bargaining; and the defendant retains the right to appeal the judgment.Footnote ²³⁷ Still, the German compromise solution has created a non-trial that is made to look like a trial, which consists in a brief acknowledgement of guilt by the defendant, followed by the court proclaiming an agreed-upon sentence. The various technical rules imposed by the legislature are felt to be excessively burdensome by some practitioners, which has led to the survival of secret backroom deals. Germany is thus still in search of a viable legal model for an abbreviated trial.

III. Bench Trials in the United States

While plea bargaining remains the dominant way of resolving criminal cases efficiently in the United States, in certain states and localities bench trials have emerged as an alternative means of accomplishing the same goal.Footnote ²³⁸ In these jurisdictions, a bench trial—meaning a regular trial conducted before a judge rather than a jury—allows defendants to waive their right to a jury trial in exchange for a streamlined process, an expedited resolution, and a sentencing discount. Unlike the abbreviated proceedings in Italy, the bench trial in the United States is not a separate procedure with a set sentencing discount. And in contrast to the formal understandings in Germany, U.S. bench trials are not necessarily preceded by explicit negotiations about the sentence.Footnote ²³⁹ Even without such negotiations, however, bench trials tend to occur within courtroom cultures with implicit understandings, where the defense can typically count on a sentence reduction for giving up the right to a jury trial.Footnote ²⁴⁰

Defendants are typically the ones who make the decision whether to opt for a bench trial, and they have to voluntarily and knowingly waive the right to a jury before a bench trial can occur.Footnote ²⁴¹ But in most states and the federal system, this is not a unilateral decision: both the prosecution and the court must also consent to the waiver of a jury trial.Footnote ²⁴² In practice, such consent is rarely withheld.Footnote ²⁴³

Bench trials take longer than guilty pleas but are significantly shorter than jury trials.Footnote ²⁴⁴ In a typical bench trial, the prosecution and the defense both present arguments and evidence to the judge, and the judge often issues a verdict and a sentence in the same sitting. There is no need to devote time to the laborious process of jury selection or the crafting of jury instructions. Judges encourage the streamlining of arguments, and the parties typically skip opening arguments and deliver very short, if any, closing statements.Footnote ²⁴⁵ The parties are also less likely to engage in evidentiary and procedural disputes and more likely to agree to factual stipulations that take some matters out of dispute.Footnote ²⁴⁶

Yet while bench trials proceed more quickly, defendants maintain important procedural rights that they ordinarily would waive as part of a plea bargain. These include the right to confront and present witnesses, the right to challenge the admissibility of evidence on constitutional grounds, and the right to appeal.Footnote ²⁴⁷

Bench trials are also arguably better than plea bargains at uncovering the true facts of the case. Witnesses are presented and examined by each side, and judges often question witnesses actively themselves.Footnote ²⁴⁸ Defendants are encouraged to “tell their stories without interruption.”Footnote ²⁴⁹ Finally, unlike plea bargains, bench trials are open to the public and transparent.

While bench trials are less adversarial than jury trials, they are frequently genuinely contested and offer a meaningful possibility of acquittal for defendants.Footnote ²⁵⁰ Moreover, in many jurisdictions, the acquittal rate in bench trials is only somewhat lower than in jury trials—and in some jurisdictions, such as the federal, it is in fact higher.Footnote ²⁵¹ In addition to producing full acquittal rates similar to those of jury trials, bench trials also frequently result in partial acquittals, often on the more serious charges against the defendant.Footnote ²⁵²

While adversarial bench trials are common in some jurisdictions, in others, a practice of “stipulated bench trials” or “slow guilty pleas” has developed.Footnote ²⁵³ As part of such stipulated trials, the defendant agrees that key facts alleged by the prosecution are true, or agrees to submit the case to the court on the basis of written evidence, such as a police report or a preliminary hearing transcript.Footnote ²⁵⁴

In these types of proceedings, acquittals are rare. Indeed, if defendants stipulate that the facts are sufficient to support a conviction, as can occur in some jurisdictions, the outcome is a foregone conclusion.Footnote ²⁵⁵ Appeals courts treat stipulations to the sufficiency of the evidence as the equivalent of guilty pleas and require courts to admonish defendants about the rights they give up by entering such stipulations.Footnote ²⁵⁶

In cases with such far-reaching stipulations, the defense opts for a bench trial not to contest the facts in the hope of an acquittal, but rather to preserve appellate rights—while also obtaining sentencing concessions from the court.Footnote ²⁵⁷ Stipulated bench trials have been criticized, however, for their potential to confuse defendants and to unnecessarily prolong proceedings in non-contested cases that could just as easily be resolved through “conditional guilty pleas” that preserve the right to appeal.Footnote ²⁵⁸ For this reason, stipulated bench trials tend to be used mostly in jurisdictions that do not provide for conditional pleas.Footnote ²⁵⁹

After both contested and stipulated bench trials, defendants typically receive lesser punishments than they would after a jury trial.Footnote ²⁶⁰ In some cases, the post-bench trial sentence may even be lower than certain post-plea sentences. Recent research reveals that in Philadelphia felony cases, defendants convicted after a bench trial typically received lower sentences than those initially offered by prosecutors in plea negotiations.Footnote ²⁶¹

In many ways, bench trials—at least when they are adversarial and not mere slow guilty pleas—strike a balance between the procedural rigor of jury trials and the administrative efficiency of plea bargains. Yet for most jurisdictions, bench trials remain a small subset of criminal dispositions.Footnote ²⁶² Historically, bench trials were disfavored because of deep suspicion of judges and their association with abuses of power during colonial times.Footnote ²⁶³ After independence, this suspicion lessened, but did not entirely disappear; juries continued to be seen as an important bulwark against official oppression and protectors of individual rights. Moreover, judges themselves—who were typically elected—preferred to leave the moral responsibility of adjudication to citizen jurors, particularly in politically fraught or capital cases.Footnote ²⁶⁴ For all these reasons, bench trials remained uncommon in most U.S. jurisdictions until the twentieth century.Footnote ²⁶⁵ As plea bargains have become more common than jury trials, however, the value of bench trials is being rediscovered in many places. Some jurisdictions have managed to maintain a relatively high rate of bench trials and thus rely less on negotiated guilty pleas.

Studies suggest that the frequency of bench trials in criminal cases depends above all on norms and relationships developed within individual court communities.Footnote ²⁶⁶ It matters, for example, whether defense attorneys believe that they have a realistic possibility of acquittal if opting for a bench trial and whether, in the event of a conviction, they can expect relative leniency at sentencing.Footnote ²⁶⁷ Trust in judges is critical to support a culture of bench trials.Footnote ²⁶⁸ Certain institutional mechanisms, such as case assignment practices, can also help to reinforce a bench-trial friendly environment.Footnote ²⁶⁹ By contrast, rules requiring prosecutorial consent to a bench trial can discourage the use of the procedure.Footnote ²⁷⁰ So can rules prohibiting judges from communicating with the parties about a sentence after a potential bench-trial conviction.Footnote ²⁷¹ In brief, the U.S. experience suggests that, at least in systems that have a tradition of jury trials, the adoption of bench trials must be deliberate and a culture favoring bench trials must be nourished over time. Once such a culture takes hold, however, it can offer a viable alternative to plea bargains.

IV. Comparative Remarks

Abbreviated proceedings in Italy and bench trials in the U.S. offer relatively efficient alternatives to full-blown trials that nonetheless preserve the opportunity for defendants to contest the facts. Defendants receive broad disclosure of evidence before the abbreviated proceedings and bench trials. Moreover, the defense in both systems has the opportunity to present evidence in court that could lead to acquittal on at least some charges—the outcome is therefore not preordained, unlike in plea bargained cases. These features make abbreviated proceedings and bench trials not only more attractive and fair to defendants, but also more likely to elucidate the true facts in the case.

In Germany, abbreviated proceedings typically rest on the expectation that the defendant admits guilt and consequently is convicted. Yet even there, facts about the case are elucidated more fully than in informal bargaining as courts are expected to take additional evidence if the defendant’s confession is ambiguous or insufficiently detailed. Moreover, formal requirements—the negotiated sentence must remain proportionate to the defendant’s guilt, the main contours of the negotiations must be made public, and the defendant retains the right to appeal the sentence—help promote just outcomes.

While an explicit promise by the court of a sentence within a certain range is part of abbreviated proceedings in Germany, in the United States, the defendant’s decision to waive the right to a jury trial is often based on a merely implicit understanding of a sentence reduction. This introduces a level of unpredictability in U.S. bench trials, but defendants in jurisdictions that regularly use bench trials know that forgoing a jury trial will bring them some sentencing benefit, while also preserving the possibility of acquittal on at least some charges and the right to appeal a guilty verdict.

Among the three procedures examined here, the Italian abbreviated procedure offers the most predictable, formally regulated sentencing discount for choosing to forgo a full-blown trial. As noted earlier, the Italian system further incentivizes defendants by preserving the opportunity to review the evidence in full, to present evidence favorable to the defense, and ultimately, to obtain an acquittal. At the same time, abbreviated procedures are quicker than regular trials, saving time for all involved and resources of the criminal legal system. These advantages help explain why the procedure has been so successful in Italy and is being used more often than plea bargaining.

It may appear paradoxical to present a procedural mechanism developed within the Italian system, which is notoriously affected by structural inefficiencies, as an effective alternative. However, the merits of such a mechanism should be assessed independently of the overall performance of the system in which it originated. A procedural device that strikes a reasonable balance between costs and benefits may prove effective when implemented within a more efficient institutional framework. From this perspective, the Italian abbreviated trial can be understood not as an anomaly, but as a functional analogue to existing plea bargaining practices, and thus as a plausible and transferable procedural model.

While these features of Italian law may encourage adoption of abbreviated procedures in other systems, the waiver of witness confrontation and reliance entirely on documentary evidence may seem less attractive to lawyers accustomed to viewing an adversarial proceeding as the fairest way of determining the facts. However, if the waiver of confrontation rights is rewarded with a sentence reduction, even adversarially minded defendants may wish to have the option to trade these benefits, as defendants in Italy do.Footnote ²⁷²

Abbreviated trials also take longer than plea bargains and are therefore likely to be costlier and potentially contribute to delays. As we discuss in the next Part, however, abbreviated trials offer an alternative to plea bargains and full trials that allows legal systems to strike a more calibrated balance between efficiency, fairness, and the search for truth.