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October 7, 2005

As if juries really matter in criminal cases...

I see this afternoon two interesting posts about jury decision-making in criminal cases: Doug Lichtman at the UC Faculty Blog is here talking up proportional jury voting schemes; Ethan Leib at PrawfsBlawg is here talking up super-majorities and a "decision rule hybrid" for criminal juries.  My reaction to both posts are: "Hmm, how interesting, this might matter in the 1 out of every 10 criminal cases that goes to trial; I wonder how it would impact the other 9 that are resolved through pleas."

I am, of course, all for deep thoughts and creative proposals concerning the structure of criminal juries (especially in the wake of Blakely).  Nevertheless, as Stephanos Bibas astutely stressed in this Yale Law Journal piece, in a world in which more than 90% of convictions result from guilty pleas, the real import and impact of criminal jury reforms depends upon the shadows that any proposed reform would cast over plea bargaining.

October 7, 2005 at 03:06 PM | Permalink


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» Elsewhere: Berman's Blog, and Mortal Kombat from The University of Chicago Law School Faculty Blog
Over at Doug Berman's Sentencing Law and Policy Blog, the conversation about jury voting rules continues. In the comments to the main post, Doug makes an especially interesting point about the tradeoff between efficiency and efficacy; I suspect that si... [Read More]

Tracked on Oct 12, 2005 9:43:59 AM

» Elsewhere: Berman's Blog, and Mortal Kombat from The University of Chicago Law School Faculty Blog
Over at Doug Berman's Sentencing Law and Policy Blog, the conversation about jury voting rules continues. In the comments to the main post, Doug makes an especially interesting point about the tradeoff between efficiency and efficacy; I suspect that si... [Read More]

Tracked on Oct 12, 2005 9:44:45 AM


Let's face it, Juries are a joke in most cases. Restructuring them won't change anything. Criminal cases are no longer tried in the court room. The media and politics have taken over.

The court room no longer (if it ever did) weighs evidence. It provides a stage for skilled theatrical performances to influence and manipulate the minds of all.

The unfortunate truth of criminal cases today is: there is no truth. The people of the jury have made their minds up long before they are summoned to perform their duty as a citizen.

In the case of sexual offenses, there is the presumption of guilt that the accused cannot overcome unless he or she has the resources of a politician, entertainer, or member of the judiciary.

Most people are forced to "take a deal" with full knowledge that if he or she faces the jury, they will be convicted based on the fact that they have been accused. The common thought seems to be, if they weren't guilty, they wouldn't be here.

What an unfortunate fact.

Posted by: Louis | Oct 9, 2005 9:41:26 PM

I agree juries these days are mostly a joke and usually are more punitive than judges. Doc's right, too, that pleas are where it's at, but the plea bargain system has been further de-legitimized, IMO, by the widespread use of informal plea agreements under the guise of confidential informant contracts. Tens of thousands of defendants in that circumstance cut deals reducing their culpability in exchange for cooperation, but they make those deals without protections afforded by a lawyer or judicial oversight. Often these agreements don't even involve prosecutors, but merely police officers looking the other way regarding an informants' crimes in exchange for information.

The overreliance on plea bargains makes today's courts too often resemble a mere assembly line designed to flip snitches and fill the prisons instead of neutral finders of fact. Doc, I'd love it if you turned us on to more material on the consequences of overreliance on plea bargains. That's how most sentences are applied, but I've seen little systematic analysis of how pleas impact either sentencing or justice outcomes generally compared to jury trials. Best,

Posted by: Scott | Oct 10, 2005 8:40:29 AM

I was thinking about this post last night, and am not sure which of two ways to go. One possible response would be to say "of course" and point out that every layer of decision-making has this same weakness. So, for instance, your post notes that 1 in 10 cases never gets to the jury, to which we could then say back "aha! but only 1 in 1000 crimes ever get detected at all!" and thus back the analysis up one more level. That itself doesn't take us very far, I suppose, especially if all we say each time is that every level benefits from having every other level work better.

But, and here might be where you really wanted us to go, maybe the more interesting thing to note is that perhaps the system works better when juries are not good at what they do. That is, Ethan and I are both trying to make juries work better -- evaluate evidence more clearly, engage in richer debate, and so on -- but maybe the point here is that we want juries to be disasters, or hopelessly random, or something, as that changes prosecutor behavior. More bluntly, knowing that there is a good chance that the jury will spin out of control and (say) recklessly acquit, a prosecutor might be more likely to settle a high-stakes case. If readers think that's good (and frankly I don't see it) then a reckless jury would have charms that Ethan and I are overlooking. By contrast, one could argue the other way and urge (say) a jury system that promises to rubber-stamp most prosecutor claims, which would be attractive if we thought that prosecutors needed more leverage to force settlements on the accused.

Again, I don't want to weigh in on these questions about what we think of prosecutorial discretion; I only want to say that the change in the frame of reference here is interesting *if* we want to use the jury to undermine or reinforce prosecutorial power, rather than using the jury for its more straightforward fact-finding mission.

I didn't think about this wrinkle at all in my original post on point, and it stikes me as a really good concern to flag. (So thanks!)

Posted by: Doug Lichtman | Oct 11, 2005 9:50:57 AM

Very interesting insights, Doug L., though the chief goal of my post was simply to spotlight that any discussion of improving jury decision-making should acknowledge that very few cases in the criminal justice system ever get before a jury.

An important related point is that juries are inefficient fact-finders, which is why, in an overloaded criminal justice system, there is so much pressure to bargain. This reality, in turn, suggests that any tweaking of juries which impact their efficiency is likely to have a more profound impact on the overall criminal justice system than any tweaking that impacts their efficacy. My quick take on your proposal, Doug, is that the gains it could produce in the efficacy of jury decision-making would (or at least could) be offset by making jury decision-making less efficient. Thus, we might get a world with better, and yet still fewer, jury determinations (if that's possible).

Another lurking point both in my post and your follow-up is that perceptions of jury decision-making -- rather than the actual work of juries -- may be of greatest import to the operation of our criminal justice system. I'm not sure how your proposal, Doug, would impact perceptions of the criminal jury, though I do think Ethan's proposal might be quite consequential in this regard.

Thanks for the great dialogue.

Posted by: Doug B. | Oct 12, 2005 1:25:03 AM

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