Trial by Jury, a Hallowed American Right, Is Vanishing

America is unusual in having "charge stacking" (if you break in and steal something you can be convicted of both the break in and the theft, as opposed to simply the more serious of the two) and plea bargains (which are considered a human rights violation in many countries). The combination really tilts the power in favor of the prosecutor and, as the article points out, drives defendants towards conviction under the very low indictment standard of evidence rather than the rigorous one of courtroom proof.

The potential for coercion in plea bargains is so high that I think it draws into question the practice as being in any way just. I've heard about drug cases where prosecutors offered 2 year sentencing deals vs. 60 year threats if the case goes to trial. What rational person would ever take that risk?

Judges should have the right to look at any plea deal they suspect may be questionable, and bring it to trial with the plea deal overriding only the sentencing portion but not the fact-determining portion of the trial. I suspect that any judge who did that would find factually innocent defendants and uncover major abuses of power.<p>Is there anything stopping a judge (other than time&#x2F;resource availability) from doing this unilaterally?

A jury is one of those things that it&#x27;s the best you have. If you can&#x27;t perform and function with the juries you select, then there&#x27;s bigger problems brewing in your community.<p>I see a considerable amount of apathy towards serving in a jury. Why is it seen as such an inconvenience? I can understand if it causes financial problems, but I&#x27;ve seen jury dodging at all levels.<p>When it comes down to it, if you were accused of a crime wouldn&#x27;t you want people who cared on the jury? If so you <i>must</i> serve on the jury and must do it dutifully.

I can see how the average reader would read the headline and article and come to the conclusion that this is evidence of another flaw in the justice system. One problem, however, is the emphasis the article places on federal courts. Federal criminal charges are, by their nature, rare. Big drug investigations, terrorism cases, human trafficking, etc. If the feds are on it, it&#x27;s likely a more elaborate case requiring many more law enforcement resources, more evidence gathered, multiple defendants, etc. It&#x27;s no surprise these cases infrequently go to trial, they require longer to investigate and prepare, they are more infrequent, and there&#x27;s so much evidence and the odds are so against the defendants that most defense lawyers advise their clients to plea out. The federal bench, therefore, is a very different beast from state courts where you see the majority of criminal cases tried.

I can&#x27;t say I am a big believer in the whole concept of juries, but that is a minor thing compared to other facets of a terribly flawed system such as the use of forsenic pseudoscience, eyewitness testimonies(which are unreliable), and more.

I have served on a jury and it is a powerful experience. It also made me want to stay far far away from any trouble with the law (&quot;the wheels of justice grind slow, but they grind exceedingly fine&quot;).<p>That said, the judges in this article come across as juvenile and thoughtless, being concerned about how boring work is without trials. How about the poor defendant who takes the plea deal even if they feel they are innocent, just because the stakes are too high? We hear a one mention of such a case, but the rest of the focus is on the poor judges and clerks who are bored or not paid enough (&quot;my kids didn&#x27;t go to camp&quot;!).

This was an odd article that kept saying trial &quot;by jury&quot; is a rare thing, and then made statements about trials generally being rare. It made me wonder how many bench trials occur.

As a jury consultant (AMA) I take issue with some things in this article, the most important of which are:<p>1. It is generally accepted as true that the number of trials per year in the U.S. is shrinking (both criminal and civil). However, the data are spotty at best. Most of the data come from the National Center for State Courts, and their data are admittedly incomplete-- to the tune of no data on a number of states at all. Nor are any of the data particularly recent. My crunching of their data puts the decline at a mere ~1.8% per year, although it may well have accelerated since their last report. How much is unknown.<p>2. The focus on judges lamenting the decline of trials is on one hand commendable and on the other disingenuous. The fact of the matter is that the vast majority of judges across the country do not like trying cases and put tremendous amounts of pressure on the parties to settle. These tactics range from straightforward admonishments to forcing the parties into endless mediation meetings and mandatory settlement conferences.<p>I am sensitive to the &quot;piling on&quot; of charges in criminal cases, which strikes me as a patently unfair means of getting multiple bites at the apple. For example, I helped defend a case involving a tragic killing where we succeeded in dodging a first degree murder conviction only to find that during sentencing, the defendant got an extra 20 years simply because the murder was carried out using a gun.

I can see them going the way of the grand jury (which has effectively been forgotten or turned in to rubber stamp so much that it doesn&#x27;t even warrant a mention in this article). The grand jury was the biggest check on prosecutorial power, it prevented the state from racking up insane charges to force a plea deal.

Justice in America is available to anyone who can afford it.

Most of these problems are created by the attitude of American public to show deep hatred for any group that is convicted of anything. We as Americans are not doing a good job of standing up for the rights of people who we dont like.<p>The law enforcement always use the words like &quot;we took this horrific sex offender off the street&quot; and people generally cheer up such talk. In reality the guy was merely caught peeing in some bush.<p>We need to stand up for the rights of drug dealers, sex offenders, suspected terrorists, victims of civil forfeiture and every other criminal because that is the right thing to do. If we start supporting &quot;vigilante&quot; attitude of law enforcement officials sooner or later they are going to come for you and me and no one will help us then.<p>Currently I see ACLU doing a good job of this at the ground level and Cato Institute doing a fine job at much higher level. But they are far too small. We need to build much bigger organizations that would do this at a larger scale.<p>Actually we dont have to pursue all cases. Figure out the most tyrannical cities and target their prosecutors heavily. Once you shame few of them publicly and humiliate them everyone else learns the lesson.

Plea bargains are pure coercion. The ability of a prosecutor to threaten you with almost arbitrarily severe punishment means that a plea bargain is a much better option than rolling the dice with a jury trial. Whether or not you committed the crime is irrelevant. You are looking at say 5 years with a plea bargain vs. either life or nothing without one, 10 years is simply the rational choice. Once you&#x27;ve accepted the plea bargain, by the way, you can&#x27;t challenge the sentence if new evidence comes up.<p>What&#x27;s perhaps more appalling is confessions made to police and prosecutors without an attorney present. The police and prosecutors can lie about the potential sentence, even threatening the suspect&#x27;s life (we&#x27;ll go death penalty!), drawing out a confession, and then be under no obligation to uphold their end of the &quot;bargain&quot;.<p>The bottom line is that 95% of people in our prisons did not have a trial before a jury of their peers. Some of these people are very likely innocent, but because of the nature of plea bargains, they cannot challenge their sentences.

In high-school civics class we are taught that trial by jury is part of the American system. Yes, there is a legal right trial by jury and occasional actual trials by jury. So what? The Soviet constitution guaranteed freedom of religion, and indeed there were a very few churches and synagogues running during the Communist period.

And yet, every other day, we read about jury trials in complex patent or copyright cases. The vague analogies they use to explain technical stuff to the jurors sound like TV programs explaining theoretical physics to 8 year olds. Jury trials can be a threat to the rule of law.