Access to legal aid[edit]

For accused persons facing trial in a criminal justice system, access to competent legal aid is necessary for guaranteeing that their interaction with the criminal justice system is fair. According to the United Nations, “Legal aid plays a crucial role in enabling people to navigate the justice system, to make informed decisions, as well as to obtain justice remedies. Legal aid makes a critical connection between populations and their justice systems and provides guidance on how to navigate the often difficult-to-understand justice system.”^[29]


The UN charges member governments with the responsibility of providing legal counsel to citizens, especially the poor, “so as to enable them to assert their rights and where necessary call upon the assistance of lawyers.”^[30]


In 2016, the UN identified several key issues in ensuring legal aid for citizens of nations that responded to the Global Study on Legal Aid: a lack of specific legislation on legal aid; a need for increased public awareness of the availability of legal aid; overburdened legal aid systems resulting in high caseloads for lawyers or a shortage of qualified lawyers; and limited availability of legal aid for those residing in rural areas or for members of vulnerable populations (e.g. internationally displaced people).^[29] These issues result in unequal access to legal aid within individual countries and across the globe. Access to justice initiatives across the globe work to ameliorate these issues an ensure access to legal aid.

Plea bargaining[edit]

Plea bargaining is the process by which the accused may negotiate with the prosecution for a lesser sentence by admitting partial guilt or by taking full responsibility for the crime committed. This process renders a trial unnecessary, allowing both the defense and the prosecution to move to the sentencing stage. Although plea bargaining was developed in the United States during the 1800s, it “rapidly spread to many other criminal justice systems including civil law countries such as Germany, France and Italy. It has now been used even in international criminal law.”^[31]


Plea bargaining is useful for both the defense and the prosecution as it spares both from spending the resources needed to conduct a trial. Additionally, defendants may be sentenced with shorter prison terms or lesser fines than they would if they were found guilty at trial. However, critics argue that the process is coercive and that "defendants lose the procedural safeguards of a trial (most of all the presumption of innocence), that victims are not heard, that the public is excluded and that convicted criminals receive too lenient sentences."^[31] Additionally, the process has been blamed for increased rates of imprisonment in countries where the majority of incarcerated individuals plead guilty without going to trial.^[32] "Cases that are resolved through plea bargaining, scholars estimate that about 90 to 95 percent of both federal and state court."^[33] The process of plea bargaining can undercut efforts to conduct a fair trial because the prosecution's case is never tested by the defense's legal representation in court. Moreover, in nations where competent legal aid for defendants is required, cases prepared by public defenders are not evaluated at trial, meaning the adequacy of a given system of public defense is not established.^[34] The balance of power tends to be in the prosecution's favor, so the accused may choose to plea bargain in the face of a significant prison sentence rather than risk a guilty verdict at trial.