There is a trend in the criminal law today to focus on the rights of victims. This trend has been manifested in actions by legislatures, courts, the President of the United States and others. Various programs have been implemented to ameliorate the crime victim's experience. For example, many states now provide compensation for victims, and victim/witness assistance programs have sprung up around the country. It has also been suggested that the victim's lot should be improved by granting them a right to participate in the prosecution of the defendant. This article examines whether victims should be accorded a right to participate in a specific stage of the prosecution, the plea bargain. The article begins by analyzing the costs and benefits of victim participation in plea bargains. It then examines the different types of plea bargains, and identifies the persons whose participation is necessary to a plea bargain. For this purpose, the article explores in detail the role of the parties and the court in plea bargains and the extent of the trial court's discretion to reject a plea bargain proposed by the parties. This article then analyzes recent changes in the law which grant victims some rights in plea bargains. The article concludes that within certain limits, victims should be accorded a right to participate in plea bargains. This right of participation should be implemented by granting to victims an opportunity to express their views on the proposed plea bargain to the trial judge at the plea bargain hearing before the trial judge decides whether to accept the plea bargain. If the victim is denied this right, the victim would have no cause of action but could report the judge to the appropriate judicial review commission. This article concludes that this right to be heard by the trial judge is sufficient to protect the various interests implicated. The victim's right to participate, therefore, should be limited, and the victim should not be granted any right to appeal if he or she objects to the trial judge's decision.

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Washington University Law Quarterly, Vol. 65, No. 2 (1987), pp. 301-356

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Criminal Law Commons


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