102 Cornell L. Rev. 1717 (2017)In the Preface to the 44th Annual Review of Criminal Procedure, Judge Alex Kozinski levels a number of criticisms against the modern American criminal justice system. Central among those criticisms is his assessment of the fundamental imbalance in criminal trials between the prosecution and the defense: “[W]e like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial.” Judge Kozinski’s concern—that the system is rigged to some degree in favor of the prosecution—is a relatively common one among defense attorneys and criminal justice reform advocates. Less common, however, are the specific measures Judge Kozinski proposes to ameliorate the criminal justice system’s flaws. One of his proposals that would work to rectify this imbalance centers on the right of the accused to receive a trial from his peers:Give criminal defendants the choice of a jury or bench trial . . . The prosecution has many institutional advantages, not the least being that they get to go first and thus have their theory of the case laid out before the defendant can present any evidence at all. I would think it fair to let the defendant get the choice of judge or jury.In many states, when a criminal defendant wants to waive the right to a jury trial in favor of a bench trial, the defendant must first obtain the consent of the prosecutor. Scholars and practitioners frequently call the refusal of that consent the “prosecutorial veto,” and what Judge Kozinski proposes is its complete elimination from criminal procedure. The primary goal of this Note is to analyze the merits of that proposal. The Note will provide the relevant legal background to the issue, including the Supreme Court’s jurisprudence on the prosecutorial veto in Part I, and the various federal and state statutory approaches to the issue in Part II. Then, in Part III, the Note will consider the merits of Judge Kozinski’s proposal to eliminate the prosecutorial veto by exploring the policy arguments for it. Finally, in Part IV, the Note will make the case against the prosecutorial veto. The Note will conclude by agreeing with Judge Kozinski’s proposal and arguing for its adoption.
The ‘Equality Of Arms’ In Macedonian Criminal Procedure
