Shadow of the trial jako model służący rekonstrukcji procesu negocjacji stron nad zawarciem porozumienia karnoprocesowego w systemach common law
The shadow of the trial as a model for analysing negotiations over the conclusion of a criminal plea agreement in common law systems

Summary/Abstract: The article introduces and discusses the model of negotiation 'in the shadow of the trial', derived from the Law and Economics stream of thought, as one of the constructs still dominant in the Anglo-American literature for explaining the course of negotiations that lead to the conclusion of plea agreement in the framework known to common law systems. The historical origins of this model and its structural basis are presented. Reference is made to the extensive body of empirical research verifying the correctness of the model in question, as well as to the criticisms formulated against it in the literature. In the last part of the study, considerations turn to the Polish regulation of consensual modes of criminal proceedings, based on the assumption that, despite the fundamental differences between these regulations and the institution of plea bargaining, the discussed model can be an interesting point of reference for considerations about the future of agreements in the Polish system as well, particularly in the context of arguments in favour of a return to the possibility of mitigating punishment in consensual proceedings. A negative assessment of the Polish regulations in this respect is made.

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