Defendants plead guilty when they are indeed guilty and the government can prove it. When investigation has produced sufficient evidence to constitute proof beyond a reasonable doubt, the burden is met. But when defendants must plead guilty before investigation is complete, serious due process concerns arise. The trial penalty pressures a defendant to agree to a plea bargain even if the factual basis is sparse. The higher the trial penalty is, the more likely defendants will plead guilty no matter the facts. Studies suggest that the weaker the evidence is, the higher the trial penalty will be. The author explains various methods of measuring the size of the trial penalty, showing that federal data can test the question effectively, and recommending that empirical examination determine the severity of the federal trial penalty at each procedural point of case processing. This can show whether Sentencing Guidelines section 3E1.1operates to apply coercive pressure when sentencing exposure increases sharply the longer the defendant takes to plead guilty. Punishing defendants more seriously the longer their cases proceed can chill investigation and force confessions even when the government’s case is weak. It is time to study timing so as to understand the size and impact of the trial penalty.

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