The Right to Trial as an Inalienable Right to Liberty – In Memory of Dr. Hasson

Based on remarks delivered at the 10th ICON-S-IL Conference, held on April 8, 2025, at the Sha’arei Mada U’Mishpat Academic Center, during the session in memory of Dr. Jonathan Hasson , a brilliant young scholar whose life and academic journey were tragically cut short.

I first met Jonathan at the biennial conference of the Israeli Society of Criminology in June 2022, where he presented his research on evidentiary exclusion policies in trial courts. Although I was aware of the influence that judges’ professional backgrounds can have on their decisions, I was surprised to learn just how significantly less likely judges with prosecutorial backgrounds were to exclude unlawfully obtained evidence, compared to those with a background in criminal defense. I shared this observation with Jonathan and praised him for his important work.

After the conference, I tried to reach out to him, but only at Eurocrim2022 in Málaga did I manage to have a proper conversation with him. I asked for his thoughts on the hidden policies surrounding evidence exclusion within plea bargaining. We agreed to conduct a joint study on the subject—research I still hope will one day come to fruition. In the meantime, we began working on two other studies, which we presented the following year at Eurocrim2023 in Florence.

Dear brother, your absence is deeply felt. Your passion for justice and the truth was radiant. How the mighty have fallen.

Within a plea bargain, the defendant— in exchange for reduced charges and/or a lighter sentence— admits to the charges and waives their right to a trial. This includes the right to confront the evidence, present a defense, and require the prosecution to prove guilt beyond a reasonable doubt. A substantial portion of exclusion motions are dealt with during plea negotiations, thus concealing from the public the true scope of unlawful investigations and other procedural defects in the criminal process.

Legal scholars, in general, tend to criticize the plea bargaining system. They argue that just as coerced confessions extracted through threats or inducements must be excluded, so too should plea bargains, which often stem from similar pressures. They point to the “innocence problem”—the fear that plea deals can produce false confessions and wrongful convictions.

Economists, on the other hand, justify allowing defendants to waive their right to trial. They argue that plea bargaining grants defendants an additional choice without depriving them of anything—thus, the defendant cannot be worse off for having the choice. The process has been likened to a free market: just as free markets are presumed to promote efficiency, so too is negotiation over the right to trial perceived as Pareto efficient.

Moreover, under this view, even a defendant who pleads guilty to something they did not do is understood to be making a rational choice—demonstrating that the plea deal is preferable, for them, to the legitimate alternative of standing trial. Accordingly, prohibiting a defendant from waiving procedural rights in exchange for a lighter sentence would, paradoxically, harm them.

According to the dominant model, plea bargains are conducted in the shadow of the expected trial outcome. Rational actors reach agreements that conserve time and resources—for themselves and for the court. Trials, in this framework, establish normative benchmarks and cast a long shadow that ensures the plea deal reflects proportionate punishment.

In my view, however, economic and game-theoretic analysis points to a different conclusion: more than plea bargaining occurs in the shadow of trials, it is in fact the trial itself that now takes place in the shadow of the (need for) bargaining.

In a free market, price mechanisms balance supply and demand. But in the “plea bargaining market,” we encounter a global phenomenon: in any legal system that allows for waiving the right to trial, sooner or later—as seen in Israel—actual trials become nearly nonexistent.

Modeling prosecutorial strategy in allocating resources between trials and plea bargains reveals what we term the feedback loop effect. This effect shows how plea bargaining creates incentives for prosecutors to divert more and more resources to less and less trials. This leads to a higher conviction rate in the few trials that do occur, which in turn increases defendants’ demand for plea deals. This also explains why trials grow longer precisely because of plea bargaining—a reversal of cause and effect used to justify the system’s very existence.

See: Michaeli, M., & Zohar, Y. (2023). The Vanishing Trial: A Dynamic Model with Adaptive Agents, Public Choice – Special Issue: Law and Economics from the Public Choice Perspective.

One would expect prosecutorial policy in the filing of indictments to be consistent and impartial. However, game-theoretic analysis of prosecutors’ charge-selection strategies reveals what we call the severity and discrimination effect. The incentives created by plea bargaining push prosecutors to pursue a dual strategy: harsh indictments coupled with lenient deals. Furthermore, in systems that permit plea deals, prosecutors may be incentivized to discriminate among defendants. Members of certain groups—who tend to place less trust in the justice system—may be more likely to accept harsher bargains.

See: Weiss, A. & Zohar, Y. (2017). Is the Plea Bargaining Game a Game of Extortion? In: Law, Society and Culture – Volume: Justice on Trial? Failures and Challenges of the Criminal Process, edited by Alon Harel, pp. 183–215.

Further modeling and empirical measurement reveal yet another issue: contrary to intuition, as the use of plea bargains increases, sentencing disparities grow more severe. This suggests that the decline in trial rates expands the negotiation range and weakens the shadow cast by trials. As a result, the link between the outcome of bargaining and the expected trial outcome becomes increasingly tenuous, and disparities in sentencing deepen.

One might argue that sentencing disparities exist even in trials, and therefore, a certain degree of disparity in plea deals is inevitable. However, the fact that such disparities exist in trials does not justify their amplification through increased reliance on plea bargaining.

See: Hasson, J. & Zohar, Y. (2025). Trial in the Shadow of Bargaining Range: The Sentencing Disparities Effect of Plea Bargaining – Theoretical and Empirical Study, Harvard Negotiation Law Review, Vol. 28, No. 2.

From this we learn that the justification for plea bargaining—that a defendant can only lose if denied the opportunity to enter a deal—is flawed. The fact that a specific defendant ultimately agreed to a plea bargain does not mean they would have preferred that option from the outset.

Plea bargains are Pareto inferior: although they ostensibly expand a defendant’s choice set, in practice they may present the defendant with two worse alternatives than what would exist in a world without plea bargaining.

We began by noting that plea bargains obscure from public view many claims of unlawful interrogations. In sessions of the Criminal Procedure Safety Team, it has been repeatedly observed that prosecutors often do not insist on completing investigations. In our most recent meeting last month, we discussed a case in which the prosecution had concealed evidence. These behaviors—enabled and even encouraged by plea bargaining—might never have come to light were it not for defendants adamant about their innocence and dedicated defense attorneys.

See: Sangero, B., Turjeman, H., & Zohar, Y. (forthcoming 2025). Establishing Criminal Justice Safety Teams: Theoretical Foundations, Practical Implementation, and the State Leadership. Georgia Criminal Law Review.

A common conclusion arising from the three studies cited above is that the discretion granted to prosecutors—to decide whether and how to incentivize suspects to waive their right to trial—strengthens the prosecution’s bargaining power, increases total punishment, and reduces the welfare of some defendants, if not all.

A power imbalance in bargaining is one of the key justifications for the existence of inalienable rights, especially in areas such as labor law or consumer contracts. In relationships between parties (for example, employee and employer or consumer and corporation), there is often a significant disparity in bargaining power. The weaker party (the employee, the consumer) is not truly free to negotiate certain terms—even if they “agree” to waive a right, that consent may be coerced or unbalanced.

“Protective laws” in labor law offer a clear example of mandatory legal norms—provisions designed to safeguard workers’ fundamental rights, which cannot be waived or contracted away. Even if a worker signs an agreement stating that they “consent” to forgo such rights, that consent is null and void.

Similarly, the right to a trial should be granted elevated status—enshrined as a fundamental, inalienable constitutional right. This can be achieved through:

1. Formal constitutional recognition of the right to trial as a mandatory, non-waivable right.
2. Amending Section 154 of the Criminal Procedure Law (Consolidated Version), 1982, to read:
   “An indictment count to which the defendant has pleaded guilty shall not be deemed proven against them.”
3. To ensure that a trial—a public process for uncovering the truth—takes place even when defendants plead guilty, a short and expedited preliminary procedure should be instituted. In this procedure, judges would be required to examine the defendant and confirm the existence of evidence substantiating the charges.
4. In any case where the defendant pleads guilty and/or waives the right to hear prosecution witnesses or other adversarial rights, the responsibility for inquiry should shift to the judge. The judge would then conduct a review of the investigation file and question the defendant. To avoid creating pressure to plead guilty solely to benefit from a shortened process, this procedure should be made available to all defendants, including those claiming innocence. The process should be open for voluntary selection by any defendant, without requiring an admission of guilt as a precondition.

During preliminary hearings, the court should be empowered—with both parties’ consent—to examine the investigative material and question the defendant, with the goal of narrowing or resolving disputes and potentially eliminating the need for adversarial evidentiary proceedings. Our observations indicate that judges often urge parties to reach agreements on their own, but rarely exercise their authority to perform substantive evidentiary oversight of the plea agreements reached.

See: Luz Kanner, S., Rosen, D., Zohar, Y., & Alberstein, M. (2019). Managerial Judicial Conflict Resolution (JCR) of Plea Bargaining: Shadows of Law and Conflict Resolution. New Criminal Law Review, 22(4), 494–541.

The requirement to conduct an evidentiary inquiry even when the defendant pleads guilty would ensure the active involvement of the judge in the process. It would also reduce pressure on defendants and defense attorneys, without unnecessarily prolonging proceedings. This would help diminish the risk that defendants confess simply because the system incentivizes them to do so.

With hope that Jonathan’s groundbreaking and vital scholarly legacy will continue to guide researchers and legal professionals in their pursuit of truth and justice.

Wishing for the swift return of all the hostages, captives, and missing.

Wishing you a joyful Passover and meaningful Festival of Freedom,
Yosef

From right to left: Jonathan’s parents, Meirav and Dr. Gad Hasson, with the conference presenters: Prof. Oren Gazal-Ayal, doctoral candidates Adv. Anat Ornstein-Kronenberg and Adv. Ronen Shiffman, and Dr. Yosef Zohar.