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Trial by Jury, a Hallowed American Right, Is Vanishing

jwatte 10y ago
Justice in America is available to anyone who can afford it.
kiba 10y ago
I can'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.
- DINKDINK 10y ago
  >I can't say I am a big believer in the whole concept of juries Care to elaborate on your objections? Juries exist so that it limits the ability of the State / prosecutors or defense teams from lobbying or coercing 'professional jurors'. You do not want the people who are determining if a citizen broke a law beholden / under the thumb of the state. I say this even as someone who had a jury rule against myself in a civil case that both sides (defense and plaintiff) thought that a judge would rule in my favor. "Oh geez you've not been chosen to sit on a jury recently, your paycheck is going to be a bit short this month. Maybe if you agreed more with the prosecutors..."
  - twblalock 10y ago
    The main objection to juries is that judges spend decades developing expertise in the law, but we reduce them to the role of referee and let 12 non-experts make very important and difficult legal decisions. In many cases, the jury comprises 12 people who were too stupid to get out of jury duty. Another common objection, often brought up in countries without juries, is that only a guilty person would desire a jury, because unlike a judge, it could be misled by appeals to emotion and faulty legal arguments. Juries also seem to be unnecessary, because there are plenty of countries that don't use juries and have more just and equitable legal systems than countries that do. These aren't exactly my views, but they are common objections raised against juries.
    - ramblenode 10y ago
      > only a guilty person would desire a jury, because unlike a judge, it could be misled by appeals to emotion and faulty legal arguments. This can also be turned around to the benefit of the prosecutor. Prosecutors may pursue legally bogus charges if they are dealing with an unsympathetic defendant. Either way, juries are more susceptible to emotional appeals than legal experts--a bad thing when the law is just, but a good thing when the law is wrong.
      - twblalock 10y ago
        I think you'll find that juries will convict even when the law is unjust. Jury nullification is probably not very widespread, despite beliefs to the contrary.
    - bdhess 10y ago
      > The main objection to juries is that judges spend decades developing expertise in the law, but we reduce them to the role of referee and let 12 non-experts make very important and difficult legal decisions. In the jury system, juries are charged with answering questions as to the facts, and judges are charged with answering questions as to the law. It makes full use of the judge's expertise in the law as well as a small sample of society's expertise in human nature and the human experience. > Another common objection, often brought up in countries without juries, is that only a guilty person would desire a jury, because unlike a judge, it could be misled by appeals to emotion and faulty legal arguments. Or put another way, someone who is technically guilty, but under circumstances where conviction of the technical violation would be unconscionable. > Juries also seem to be unnecessary, because there are plenty of countries that don't use juries and have more just and equitable legal systems than countries that do. Without getting into the merits of the obviously subjective argument here, it's not clear that the conclusion follows even if we grant the assumption. The superior justice system of a non-jury country might be perfected yet further by introducing juries.
      - makomk 10y ago
        The textbook explanation of juries is that they answer questions of fact and the judge answers questions of law, but that's fairly obviously not what they're doing in practice. Juries are required to hand down a verdict of guilty or not guilty, which means that they need to understand all the gnarly and difficult parts of the law and how it applies to the facts at hand. You can find an, errm, interesting explanation here: http://lawcomic.net/guide/?p=299 http://lawcomic.net/guide/?p=299
  - kiba 10y ago
    I question the ability of average people to evaluate arguments and think critically.
    - acjohnson55 10y ago
      I second the question of their ability to evacuate arguments :)
    - JoeAltmaier 10y ago
      The jury isn't there to interpret the law - plenty of people in the room doing that already. Juries are there to inject mercy. That's why they must be a 'jury of peers' - so they understand why and can intervene with mercy if necessary.
      - kiba 10y ago
        The jury isn't there to interpret the law - plenty of people in the room doing that already. Juries are there to inject mercy. I don't buy that they will inject mercy, especially if they thought about irrelevant factors to determine guilt or innocence. Juries are unpredictable. Does that mean that they made good judgement or that they are swayed by good-sounding arguments?
        JoeAltmaier 10y ago
        They are supposed to know about the situation the poor slob is in, and take that into consideration. Which the letter of the law can't do.
      - twblalock 10y ago
        Juries are instructed to determine the facts of the case beyond a reasonable doubt, and thereby determine the verdict. Mercy is not part of jury instructions. A jury would be a pretty blunt instrument in the delivery of mercy, because they don't control sentencing, but only the verdict. All the jury can say is "guilty" or "not guilty" -- not something like "guilty, but give the guy a merciful sentence because of mitigating factors."
  - csydas 10y ago
    Forgive me for basis a lot of my argument off a single comic/link, but this comic blog from a lawyer helps explain why the Jury system is very much so a problem (mildly long read): http://thecriminallawyer.tumblr.com/post/16202923895/interlude-the-jury http://thecriminallawyer.tumblr.com/post/16202923895/interlu... In short, you're asking jurors to take on a huge responsibility with little to no understanding of the laws they're being expected to make a decision on. In virtually every instance the jurors are left in a completely uneducated state and unable to give any proper assessment, relying basically on whatever cues they decide to pick up on instead of factual evidence. The idea of 12 Angry Men never really existed with juries and was far outside the scope of what a juror is really supposed to be doing.
    - refurb 10y ago
      That comic doesn't reflect my experience in the least. I was allowed to take notes (the judge did warn the jurors not to let note taking distract you). Yes, the instructions from the judge did take an hour, but I was given a copy of the instructions for deliberations. The instructions are also written by a panel of judges/lawyers so they are very methodical and logical. "In order to be convicted of murder, you must find at least one (1) of the following to be true:....". We had testimony re-read by the reporter and all the physical evidence was just given to us to rifle through. We could replay videos, etc. Sure it's not perfect, but it's life. What in life is perfect?
    - DINKDINK 10y ago
      IANAL but unless criminal and civil trial instructions for juries are drastically different, there are several inaccuracies in that comment at least for juries in California. -Juries are allowed to take notes. -Juries are allowed to submit questions, that are reviewed for approval by both sides' lawyers and the judge. -Juries do get a copy of the law they need to determine was violated
      - dragonwriter 10y ago
        > IANAL but unless criminal and civil trial instructions for juries are drastically different Criminal and civil trial instructions for juries are drastically different. Heck, trial instructions for different issues within either domain can be drastically different, too.
  - maxxxxx 10y ago
    I was part of a jury earlier this year and my problem was that the defense and the prosecution made several mistakes and didn't explain things well. As jury you are supposed to only take into account what has been presented during the trial. You can't for example ask a lawyer to clarify an issue. This makes the system very vulnerable to bad representation. If a lawyer is obviously bad the jury can't do anything but sit and listen.
    - ewjordan 10y ago
      The solution to that is pretty simple: vote not guilty, and refuse to budge. If you need any clarification, the prosecution has not done their job. In a criminal trial, you're not there to figure out what happened, you're there to judge whether it has been established beyond a reasonable doubt that the defendant is guilty. Whether the defense or prosecution made mistakes, if you're left with a reasonable doubt that the defendant is guilty (and I personally consider it the case that inept defense can cause reasonable doubt, unless the prosecution presents an airtight case - a lot of people, including most of my lawyer friends, would disagree with me there), don't vote to convict.
      - phil21 10y ago
        If the jury is comprised of HN readers, you'd be correct. They are not. And it's on purpose that they are not. That is my main problem with juries. Whatever they are, they are decidedly not a jury of my peers. They are people who are selected to be as dumb and open to suggestion as possible. Effectively a popularity contest between counsel. One day in a courtroom during jury selection should show any thinking individual that the whole process is a complete farce. Only the least capable (in general) end up on juries - and it's entirely by design.
      - refurb 10y ago
        Exactly. The default judgement is "not guilty". The burden is on the gov't to prove it's case. If the gov't fails to do so, either because they didn't explain things well or asked the wrong questions of witnesses, then you vote not guilty.
- mikestew 10y ago
  Seems like the article would convert one to a true believer in trial by a jury of your peers. 'cuz the prosecutor and the judge are not your peers, and in many cases working together against your interests.
- saryant 10y ago
  I served on a jury a year ago and I came away with a greater belief in their importance. The case in question a week-long criminal trial of a police detective who tipped off a suspected child predator of his impending arrest. The charges were obstruction of justice, abuse of power and aiding in the sexual assault of a minor. One notable difference between jury trials in Colorado and elsewhere is that Colorado gives judges the option of allowing jurors to submit their own questions of witnesses. Much of the case hinged on an email the detective had sent the child predator, so of course the defense tried to obfuscate by throwing up smoke screens to confuse the jury. Two of us on the jury were software engineers. We were allowed to question both the defense's computer forensic expert and the state's. We were allowed to directly examine records subpoenaed from Google, Yahoo, Craigslist and various ISP's. A Colorado jury isn't just a silent observer, we were active participants (though we never spoke—questions were written and submitted anonymously to the judge, who had discretion on which to allow, and counsel was given the chance to object to each question before it was read aloud to the witness). In the end, we found him guilty. And I have no doubt we were correct.
  - erelde 10y ago
    It reminds me of the recent Google/Oracle trial, where both parties got rid of all computer literate persons in the jury. "Peers" in that case, maybe should have meant "people able to understand the technicalities", engineers and software lawyers.
  - tveita 10y ago
    So in the end you served not just as a jury, but also as an expert witness that the defense was not allowed to examine the credentials of, hear the statements made, or question? I'm glad you're certain in your conclusions, but in my mind there's a worry that that kind of "back-seat testimony" makes the trial less transparent and fair.
    - jessaustin 10y ago
      It says right there that they could raise objections before the expert or jury heard the question. If the question were unfair or misleading I'm sure they would. If you think that there aren't several confident know-it-all types who never get cross-examined on every jury everywhere ever, you wouldn't make a very good defense attorney.
mooreds 10y ago
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 ("the wheels of justice grind slow, but they grind exceedingly fine"). 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 ("my kids didn't go to camp"!).
- jonas21 10y ago
  Huh? The judges quoted in the article seem to be concerned about the impact on the fairness of the justice system. --- > “It’s a loss,” Judge Kaplan said, “because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.” --- > “It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested. Everything else is done behind closed doors.” --- > Judge Gleeson wrote that because most pleas are negotiated before a prosecutor prepares a case for trial, the “thin presentation” of evidence needed for indictment “is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.” “The entire system loses an edge,” he added, “and I have no doubt that the quality of justice in our courthouses has suffered as a result.” --- The "my kids didn't go to camp" quote is from a stenographer and was probably chosen by the reporter just to add another angle to the story.
  - ekiru 10y ago
    The first quote you've referenced doesn't make mention of the fairness of the justice system. So, there were two quoted judges bemoaning its effects on the fairness of the justice system, two talking about how their jobs are boring without trials (the quotes included below), and four that do not clearly talk about either of those. --- > “We’d love to have more trials; most of us enjoy trials,” said Judge Alvin K. Hellerstein, who joined the bench in 1998. --- > In April, when Judge Shira A. Scheindlin resigned from the bench after more than two decades, she said the decrease in trials was one consideration for her departure. “Trials are way, way down,” she said. “The building’s quite dead.”
jimrandomh 10y ago
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. Is there anything stopping a judge (other than time/resource availability) from doing this unilaterally?
- superuser2 10y ago
  >other than time/resource availability Time and resource availability is the whole reason plea bargains happen to begin with. Even if you hire more judges and build more courtrooms, going to trial may not help unless defendants get good lawyers who can spend a lot of time on their cases. These are not hallmarks of public defender offices in states with budget woes (i.e. almost all of them).
- derefr 10y ago
  How about, while we're at it, giving judges the ability to invalidate an arbitration clause when a case in their jurisdiction is brought to their attention and they deem it "worthy" of a full trial?
- rayiner 10y ago
  Judges have great discretion not to accept plea deals. A plea isn't just an arrangement between a defendant and a prosecutor. It involves an extended process where the defendant presents the plea to the judge and the prosecutor offers the facts it would offer at trial to prove the allegations.
- will_brown 10y ago
  >Judges should have the right to look at any plea deal they suspect may be questionable... When a defendant changes their plea from guilty to either not guilty or no contest pursuant to a plea offer, a Judge always hears the offer and has the authority to accept or reject the offer. Moreover, pleas are evidentiary hearings so evidence of mitigating/aggravating facts can be introduced to help the judge make their decision. Typically, the facts will be limited to simply enough to establish there are facts sufficient, that if true, would result in a conviction). However, if the Judge has a problem with it (thinks the sentence is to light or to heavy) they will usually request evidence to justify the deal. In addition to what people typically think about when they hear plea (defense and prosecutor working out a deal), often times the two parties can't come to an agreeable deal, and the defense will opt for an open plea to the court, essentially bypassing the prosecutor's offer and asking the Judge for exactly what they want, and then allowing the Judge to again make the final decision based on the evidence offered at the plea hearing.
massysett 10y ago
This was an odd article that kept saying trial "by jury" is a rare thing, and then made statements about trials generally being rare. It made me wonder how many bench trials occur.
- jessaustin 10y ago
  You seem to have missed the point. The problem is not too many bench trials; after all defendants may usually choose to have such a trial if they wish. The problem is the vast majority of people in prison because they were intimidated into a plea, not because a jury of their peers convicted them.
  - massysett 10y ago
    I did not miss the point. The article repeatedly noted that trials subject the evidence to more scrutiny than plea deals. A bench trial would have the same effect as a jury trial here. The article asserts that trials are valuable. OK. However, throughout it subtly shifts and says there are few trials by jury and asserts this is a big problem.
JNaz 10y ago
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's likely a more elaborate case requiring many more law enforcement resources, more evidence gathered, multiple defendants, etc. It's no surprise these cases infrequently go to trial, they require longer to investigate and prepare, they are more infrequent, and there'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.
- nerdponx 10y ago
  Fair, but it begs the question as to whether State level trials have increased proportionallly
  - Erik816 10y ago
    Why should State trials increase if Federal trial decrease? They are two separate jurisdictions, with different prosecutors, crimes, etc. They are not that closely linked.
  - jackfoxy 10y ago
    I cringe every time I see begs the question in its modern usage. Please don't take this as a personal attack. Just sayin'.
    - nerdponx 10y ago
      I feel your pain, but I also don't know better way to express what I just expressed
      - abduhl 10y ago
        "Raises the question"
unabridged 10y ago
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'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.
josh_fyi 10y ago
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.
acjacobson 10y ago
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?
- danieltillett 10y ago
  >What rational person would ever take that risk? A rich person who can afford to hire good lawyers. If the DA is offering 2 years for a case that could go 60 then the case is not strong. The one area I would fight even if not rich is if I was accused of a sexual crime. In the USA this is a life sentence either way. The choice is between spending your life in jail if found guilty or living under a bridge if you plea.
  - Unbeliever69 10y ago
    The VAST VAST majority of sexual related crimes are NOT taken to jury because of the stigma associated with those types of crimes. You will most likely NOT get a fair trial in a sexual related case. In a "hand on / aggravated" offense I would agree with you. You have nothing to lose. But in all other cases better to take the deal.
    - slededit 10y ago
      You could request a bench trial if you think the public at large would be biased. Unfortunately in the US this requires consent of the prosecutor. The Ghomeshi trial in Canada is an example of using a bench trial in this circumstance.
    - danieltillett 10y ago
      Yes you are unlikely to get a fail trial, but when you are facing a life sentence of being on the sexual offenders register if you plea I would still take the chance on a trial (I am of course assuming here that I am innocent).
- 10y ago
matt_wulfeck 10y ago
A jury is one of those things that it's the best you have. If you can't perform and function with the juries you select, then there's bigger problems brewing in your community. 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've seen jury dodging at all levels. When it comes down to it, if you were accused of a crime wouldn't you want people who cared on the jury? If so you must serve on the jury and must do it dutifully.
- danieltillett 10y ago
  Jury duty should be properly compensated. Why does everyone else in the court room get paid a real wage for doing their job except the jury?
  - grkvlt 10y ago
    How do you compensate them? Based on the compensation of the attorneys, maybe, but which side - the low-paid public prosecutor or the high-powered defence attorney? If you raise compensation to a high level, then jury duty becomes attractive as a source of income for unemployed people, or as a target of scams and cons. If you simply restrict compensation to paying the jurors what they would have been paid in their usual jobs you have the problem of the temporarily unemployed but normally highly paid person. It's difficult, and the government has to strike a balance somewhere.
    - VLM 10y ago
      "then jury duty becomes attractive as a source of income for unemployed people, or as a target of scams and cons." How? Locally the system is a random lottery based on a pool of drivers license registrations. A standard mantra against voter-ID laws is that pool of poor people is highly challenged to obtain ID (which in reality is false, its just a mantra), so if anything there should be a statistical lack of unemployed people not a surplus. WRT scams and cons I guess you'd have fewer people lying about being members of the fully informed jury association or otherwise trying to avoid service, and that aversion to lie should make the system inherently fairer, so again no problem?
fauigerzigerk 10y ago
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.
gumby 10y ago
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.
- JohnStrange 10y ago
  In addition to what you've said, the maximum penalty for whatever crime someone is charged tends to be about 10 x higher than anywhere else on the planet (probably because of the stacking), and many things have been declared serious crimes in the US that would be minor offenses and barely be persecuted elsewhere. See Aaron Schwartz. And the US has started to demand extraditions of people as fugitives, even though they've never set a foot on US soil and their company falls under a completely different jurisdiction. See Kim Dotcom. If you ask me, that's crazy. Then again, for someone living in the US it's probably just normal. Anyway, if you wear a tie and are white, there's not much to worry about in the US ... unless you're some sort of leftist hacktivist or reverse engineer a device you've purchased or develop p2p software, of course.
  - humanrebar 10y ago
    > unless you're some sort of leftist hacktivist ...or any citizen activist, really. The citizen journalists who broke the Planned Parenthood story last year were indicted with "tampering with government records" for faking identities so they could go undercover. And two years ago, a story broke that the IRS was targeting certain nonprofits because of their names and political leanings. Nobody has been held criminally accountable or 'overzealous' prosecution in either case. There was one early retirement (not even officially a resignation) after the IRS scandal.
    - dctoedt 10y ago
      You betray your political leanings here: + If by "the Planned Parenthood story" you mean the allegations of selling body parts from fetuses, the story was fake from the get-go and the "citizen journalists" [sic] edited their recordings to push their right-wing agenda. [0] + Contrary to what right-wing conspiracy theorists claimed, the IRS wasn't targeting conservative nonprofits specifically; it was looking at other characteristics based on keyword searches. [1] [0] http://www.cnn.com/2015/10/19/politics/planned-parenthood-videos/ http://www.cnn.com/2015/10/19/politics/planned-parenthood-vi... [1] https://en.wikipedia.org/wiki/IRS_targeting_controversy https://en.wikipedia.org/wiki/IRS_targeting_controversy
onetwotree 10y ago
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've accepted the plea bargain, by the way, you can't challenge the sentence if new evidence comes up. What'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's life (we'll go death penalty!), drawing out a confession, and then be under no obligation to uphold their end of the "bargain". 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.
tn13 10y ago
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. The law enforcement always use the words like "we took this horrific sex offender off the street" and people generally cheer up such talk. In reality the guy was merely caught peeing in some bush. 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 "vigilante" attitude of law enforcement officials sooner or later they are going to come for you and me and no one will help us then. 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. 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.
staticautomatic 10y ago
As a jury consultant (AMA) I take issue with some things in this article, the most important of which are: 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. 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. I am sensitive to the "piling on" 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.

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

kiba 10y ago

I can'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.

DINKDINK 10y ago
>I can't say I am a big believer in the whole concept of juries Care to elaborate on your objections? Juries exist so that it limits the ability of the State / prosecutors or defense teams from lobbying or coercing 'professional jurors'. You do not want the people who are determining if a citizen broke a law beholden / under the thumb of the state. I say this even as someone who had a jury rule against myself in a civil case that both sides (defense and plaintiff) thought that a judge would rule in my favor. "Oh geez you've not been chosen to sit on a jury recently, your paycheck is going to be a bit short this month. Maybe if you agreed more with the prosecutors..."
- twblalock 10y ago
  The main objection to juries is that judges spend decades developing expertise in the law, but we reduce them to the role of referee and let 12 non-experts make very important and difficult legal decisions. In many cases, the jury comprises 12 people who were too stupid to get out of jury duty. Another common objection, often brought up in countries without juries, is that only a guilty person would desire a jury, because unlike a judge, it could be misled by appeals to emotion and faulty legal arguments. Juries also seem to be unnecessary, because there are plenty of countries that don't use juries and have more just and equitable legal systems than countries that do. These aren't exactly my views, but they are common objections raised against juries.
  - ramblenode 10y ago
    > only a guilty person would desire a jury, because unlike a judge, it could be misled by appeals to emotion and faulty legal arguments. This can also be turned around to the benefit of the prosecutor. Prosecutors may pursue legally bogus charges if they are dealing with an unsympathetic defendant. Either way, juries are more susceptible to emotional appeals than legal experts--a bad thing when the law is just, but a good thing when the law is wrong.
    - twblalock 10y ago
      I think you'll find that juries will convict even when the law is unjust. Jury nullification is probably not very widespread, despite beliefs to the contrary.
  - bdhess 10y ago
    > The main objection to juries is that judges spend decades developing expertise in the law, but we reduce them to the role of referee and let 12 non-experts make very important and difficult legal decisions. In the jury system, juries are charged with answering questions as to the facts, and judges are charged with answering questions as to the law. It makes full use of the judge's expertise in the law as well as a small sample of society's expertise in human nature and the human experience. > Another common objection, often brought up in countries without juries, is that only a guilty person would desire a jury, because unlike a judge, it could be misled by appeals to emotion and faulty legal arguments. Or put another way, someone who is technically guilty, but under circumstances where conviction of the technical violation would be unconscionable. > Juries also seem to be unnecessary, because there are plenty of countries that don't use juries and have more just and equitable legal systems than countries that do. Without getting into the merits of the obviously subjective argument here, it's not clear that the conclusion follows even if we grant the assumption. The superior justice system of a non-jury country might be perfected yet further by introducing juries.
    - makomk 10y ago
      The textbook explanation of juries is that they answer questions of fact and the judge answers questions of law, but that's fairly obviously not what they're doing in practice. Juries are required to hand down a verdict of guilty or not guilty, which means that they need to understand all the gnarly and difficult parts of the law and how it applies to the facts at hand. You can find an, errm, interesting explanation here: http://lawcomic.net/guide/?p=299 http://lawcomic.net/guide/?p=299
- kiba 10y ago
  I question the ability of average people to evaluate arguments and think critically.
  - acjohnson55 10y ago
    I second the question of their ability to evacuate arguments :)
  - JoeAltmaier 10y ago
    The jury isn't there to interpret the law - plenty of people in the room doing that already. Juries are there to inject mercy. That's why they must be a 'jury of peers' - so they understand why and can intervene with mercy if necessary.
    - kiba 10y ago
      The jury isn't there to interpret the law - plenty of people in the room doing that already. Juries are there to inject mercy. I don't buy that they will inject mercy, especially if they thought about irrelevant factors to determine guilt or innocence. Juries are unpredictable. Does that mean that they made good judgement or that they are swayed by good-sounding arguments?
      - JoeAltmaier 10y ago
        They are supposed to know about the situation the poor slob is in, and take that into consideration. Which the letter of the law can't do.
    - twblalock 10y ago
      Juries are instructed to determine the facts of the case beyond a reasonable doubt, and thereby determine the verdict. Mercy is not part of jury instructions. A jury would be a pretty blunt instrument in the delivery of mercy, because they don't control sentencing, but only the verdict. All the jury can say is "guilty" or "not guilty" -- not something like "guilty, but give the guy a merciful sentence because of mitigating factors."
- csydas 10y ago
  Forgive me for basis a lot of my argument off a single comic/link, but this comic blog from a lawyer helps explain why the Jury system is very much so a problem (mildly long read): http://thecriminallawyer.tumblr.com/post/16202923895/interlude-the-jury http://thecriminallawyer.tumblr.com/post/16202923895/interlu... In short, you're asking jurors to take on a huge responsibility with little to no understanding of the laws they're being expected to make a decision on. In virtually every instance the jurors are left in a completely uneducated state and unable to give any proper assessment, relying basically on whatever cues they decide to pick up on instead of factual evidence. The idea of 12 Angry Men never really existed with juries and was far outside the scope of what a juror is really supposed to be doing.
  - refurb 10y ago
    That comic doesn't reflect my experience in the least. I was allowed to take notes (the judge did warn the jurors not to let note taking distract you). Yes, the instructions from the judge did take an hour, but I was given a copy of the instructions for deliberations. The instructions are also written by a panel of judges/lawyers so they are very methodical and logical. "In order to be convicted of murder, you must find at least one (1) of the following to be true:....". We had testimony re-read by the reporter and all the physical evidence was just given to us to rifle through. We could replay videos, etc. Sure it's not perfect, but it's life. What in life is perfect?
  - DINKDINK 10y ago
    IANAL but unless criminal and civil trial instructions for juries are drastically different, there are several inaccuracies in that comment at least for juries in California. -Juries are allowed to take notes. -Juries are allowed to submit questions, that are reviewed for approval by both sides' lawyers and the judge. -Juries do get a copy of the law they need to determine was violated
    - dragonwriter 10y ago
      > IANAL but unless criminal and civil trial instructions for juries are drastically different Criminal and civil trial instructions for juries are drastically different. Heck, trial instructions for different issues within either domain can be drastically different, too.
- maxxxxx 10y ago
  I was part of a jury earlier this year and my problem was that the defense and the prosecution made several mistakes and didn't explain things well. As jury you are supposed to only take into account what has been presented during the trial. You can't for example ask a lawyer to clarify an issue. This makes the system very vulnerable to bad representation. If a lawyer is obviously bad the jury can't do anything but sit and listen.
  - ewjordan 10y ago
    The solution to that is pretty simple: vote not guilty, and refuse to budge. If you need any clarification, the prosecution has not done their job. In a criminal trial, you're not there to figure out what happened, you're there to judge whether it has been established beyond a reasonable doubt that the defendant is guilty. Whether the defense or prosecution made mistakes, if you're left with a reasonable doubt that the defendant is guilty (and I personally consider it the case that inept defense can cause reasonable doubt, unless the prosecution presents an airtight case - a lot of people, including most of my lawyer friends, would disagree with me there), don't vote to convict.
    - phil21 10y ago
      If the jury is comprised of HN readers, you'd be correct. They are not. And it's on purpose that they are not. That is my main problem with juries. Whatever they are, they are decidedly not a jury of my peers. They are people who are selected to be as dumb and open to suggestion as possible. Effectively a popularity contest between counsel. One day in a courtroom during jury selection should show any thinking individual that the whole process is a complete farce. Only the least capable (in general) end up on juries - and it's entirely by design.
    - refurb 10y ago
      Exactly. The default judgement is "not guilty". The burden is on the gov't to prove it's case. If the gov't fails to do so, either because they didn't explain things well or asked the wrong questions of witnesses, then you vote not guilty.
mikestew 10y ago
Seems like the article would convert one to a true believer in trial by a jury of your peers. 'cuz the prosecutor and the judge are not your peers, and in many cases working together against your interests.
saryant 10y ago
I served on a jury a year ago and I came away with a greater belief in their importance. The case in question a week-long criminal trial of a police detective who tipped off a suspected child predator of his impending arrest. The charges were obstruction of justice, abuse of power and aiding in the sexual assault of a minor. One notable difference between jury trials in Colorado and elsewhere is that Colorado gives judges the option of allowing jurors to submit their own questions of witnesses. Much of the case hinged on an email the detective had sent the child predator, so of course the defense tried to obfuscate by throwing up smoke screens to confuse the jury. Two of us on the jury were software engineers. We were allowed to question both the defense's computer forensic expert and the state's. We were allowed to directly examine records subpoenaed from Google, Yahoo, Craigslist and various ISP's. A Colorado jury isn't just a silent observer, we were active participants (though we never spoke—questions were written and submitted anonymously to the judge, who had discretion on which to allow, and counsel was given the chance to object to each question before it was read aloud to the witness). In the end, we found him guilty. And I have no doubt we were correct.
- erelde 10y ago
  It reminds me of the recent Google/Oracle trial, where both parties got rid of all computer literate persons in the jury. "Peers" in that case, maybe should have meant "people able to understand the technicalities", engineers and software lawyers.
- tveita 10y ago
  So in the end you served not just as a jury, but also as an expert witness that the defense was not allowed to examine the credentials of, hear the statements made, or question? I'm glad you're certain in your conclusions, but in my mind there's a worry that that kind of "back-seat testimony" makes the trial less transparent and fair.
  - jessaustin 10y ago
    It says right there that they could raise objections before the expert or jury heard the question. If the question were unfair or misleading I'm sure they would. If you think that there aren't several confident know-it-all types who never get cross-examined on every jury everywhere ever, you wouldn't make a very good defense attorney.

mooreds 10y ago

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 ("the wheels of justice grind slow, but they grind exceedingly fine"). 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 ("my kids didn't go to camp"!).

jonas21 10y ago
Huh? The judges quoted in the article seem to be concerned about the impact on the fairness of the justice system. --- > “It’s a loss,” Judge Kaplan said, “because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.” --- > “It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested. Everything else is done behind closed doors.” --- > Judge Gleeson wrote that because most pleas are negotiated before a prosecutor prepares a case for trial, the “thin presentation” of evidence needed for indictment “is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.” “The entire system loses an edge,” he added, “and I have no doubt that the quality of justice in our courthouses has suffered as a result.” --- The "my kids didn't go to camp" quote is from a stenographer and was probably chosen by the reporter just to add another angle to the story.
- ekiru 10y ago
  The first quote you've referenced doesn't make mention of the fairness of the justice system. So, there were two quoted judges bemoaning its effects on the fairness of the justice system, two talking about how their jobs are boring without trials (the quotes included below), and four that do not clearly talk about either of those. --- > “We’d love to have more trials; most of us enjoy trials,” said Judge Alvin K. Hellerstein, who joined the bench in 1998. --- > In April, when Judge Shira A. Scheindlin resigned from the bench after more than two decades, she said the decrease in trials was one consideration for her departure. “Trials are way, way down,” she said. “The building’s quite dead.”

jimrandomh 10y ago

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. Is there anything stopping a judge (other than time/resource availability) from doing this unilaterally?

superuser2 10y ago
>other than time/resource availability Time and resource availability is the whole reason plea bargains happen to begin with. Even if you hire more judges and build more courtrooms, going to trial may not help unless defendants get good lawyers who can spend a lot of time on their cases. These are not hallmarks of public defender offices in states with budget woes (i.e. almost all of them).
derefr 10y ago
How about, while we're at it, giving judges the ability to invalidate an arbitration clause when a case in their jurisdiction is brought to their attention and they deem it "worthy" of a full trial?
rayiner 10y ago
Judges have great discretion not to accept plea deals. A plea isn't just an arrangement between a defendant and a prosecutor. It involves an extended process where the defendant presents the plea to the judge and the prosecutor offers the facts it would offer at trial to prove the allegations.
will_brown 10y ago
>Judges should have the right to look at any plea deal they suspect may be questionable... When a defendant changes their plea from guilty to either not guilty or no contest pursuant to a plea offer, a Judge always hears the offer and has the authority to accept or reject the offer. Moreover, pleas are evidentiary hearings so evidence of mitigating/aggravating facts can be introduced to help the judge make their decision. Typically, the facts will be limited to simply enough to establish there are facts sufficient, that if true, would result in a conviction). However, if the Judge has a problem with it (thinks the sentence is to light or to heavy) they will usually request evidence to justify the deal. In addition to what people typically think about when they hear plea (defense and prosecutor working out a deal), often times the two parties can't come to an agreeable deal, and the defense will opt for an open plea to the court, essentially bypassing the prosecutor's offer and asking the Judge for exactly what they want, and then allowing the Judge to again make the final decision based on the evidence offered at the plea hearing.

massysett 10y ago

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

jessaustin 10y ago
You seem to have missed the point. The problem is not too many bench trials; after all defendants may usually choose to have such a trial if they wish. The problem is the vast majority of people in prison because they were intimidated into a plea, not because a jury of their peers convicted them.
- massysett 10y ago
  I did not miss the point. The article repeatedly noted that trials subject the evidence to more scrutiny than plea deals. A bench trial would have the same effect as a jury trial here. The article asserts that trials are valuable. OK. However, throughout it subtly shifts and says there are few trials by jury and asserts this is a big problem.

JNaz 10y ago

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's likely a more elaborate case requiring many more law enforcement resources, more evidence gathered, multiple defendants, etc. It's no surprise these cases infrequently go to trial, they require longer to investigate and prepare, they are more infrequent, and there'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.

nerdponx 10y ago
Fair, but it begs the question as to whether State level trials have increased proportionallly
- Erik816 10y ago
  Why should State trials increase if Federal trial decrease? They are two separate jurisdictions, with different prosecutors, crimes, etc. They are not that closely linked.
- jackfoxy 10y ago
  I cringe every time I see begs the question in its modern usage. Please don't take this as a personal attack. Just sayin'.
  - nerdponx 10y ago
    I feel your pain, but I also don't know better way to express what I just expressed
    - abduhl 10y ago
      "Raises the question"

unabridged 10y ago

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'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.

josh_fyi 10y ago

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.

acjacobson 10y ago

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?

danieltillett 10y ago
>What rational person would ever take that risk? A rich person who can afford to hire good lawyers. If the DA is offering 2 years for a case that could go 60 then the case is not strong. The one area I would fight even if not rich is if I was accused of a sexual crime. In the USA this is a life sentence either way. The choice is between spending your life in jail if found guilty or living under a bridge if you plea.
- Unbeliever69 10y ago
  The VAST VAST majority of sexual related crimes are NOT taken to jury because of the stigma associated with those types of crimes. You will most likely NOT get a fair trial in a sexual related case. In a "hand on / aggravated" offense I would agree with you. You have nothing to lose. But in all other cases better to take the deal.
  - slededit 10y ago
    You could request a bench trial if you think the public at large would be biased. Unfortunately in the US this requires consent of the prosecutor. The Ghomeshi trial in Canada is an example of using a bench trial in this circumstance.
  - danieltillett 10y ago
    Yes you are unlikely to get a fail trial, but when you are facing a life sentence of being on the sexual offenders register if you plea I would still take the chance on a trial (I am of course assuming here that I am innocent).
10y ago

matt_wulfeck 10y ago

A jury is one of those things that it's the best you have. If you can't perform and function with the juries you select, then there's bigger problems brewing in your community. 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've seen jury dodging at all levels. When it comes down to it, if you were accused of a crime wouldn't you want people who cared on the jury? If so you must serve on the jury and must do it dutifully.

danieltillett 10y ago
Jury duty should be properly compensated. Why does everyone else in the court room get paid a real wage for doing their job except the jury?
- grkvlt 10y ago
  How do you compensate them? Based on the compensation of the attorneys, maybe, but which side - the low-paid public prosecutor or the high-powered defence attorney? If you raise compensation to a high level, then jury duty becomes attractive as a source of income for unemployed people, or as a target of scams and cons. If you simply restrict compensation to paying the jurors what they would have been paid in their usual jobs you have the problem of the temporarily unemployed but normally highly paid person. It's difficult, and the government has to strike a balance somewhere.
  - VLM 10y ago
    "then jury duty becomes attractive as a source of income for unemployed people, or as a target of scams and cons." How? Locally the system is a random lottery based on a pool of drivers license registrations. A standard mantra against voter-ID laws is that pool of poor people is highly challenged to obtain ID (which in reality is false, its just a mantra), so if anything there should be a statistical lack of unemployed people not a surplus. WRT scams and cons I guess you'd have fewer people lying about being members of the fully informed jury association or otherwise trying to avoid service, and that aversion to lie should make the system inherently fairer, so again no problem?

fauigerzigerk 10y ago

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.

gumby 10y ago

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.

JohnStrange 10y ago
In addition to what you've said, the maximum penalty for whatever crime someone is charged tends to be about 10 x higher than anywhere else on the planet (probably because of the stacking), and many things have been declared serious crimes in the US that would be minor offenses and barely be persecuted elsewhere. See Aaron Schwartz. And the US has started to demand extraditions of people as fugitives, even though they've never set a foot on US soil and their company falls under a completely different jurisdiction. See Kim Dotcom. If you ask me, that's crazy. Then again, for someone living in the US it's probably just normal. Anyway, if you wear a tie and are white, there's not much to worry about in the US ... unless you're some sort of leftist hacktivist or reverse engineer a device you've purchased or develop p2p software, of course.
- humanrebar 10y ago
  > unless you're some sort of leftist hacktivist ...or any citizen activist, really. The citizen journalists who broke the Planned Parenthood story last year were indicted with "tampering with government records" for faking identities so they could go undercover. And two years ago, a story broke that the IRS was targeting certain nonprofits because of their names and political leanings. Nobody has been held criminally accountable or 'overzealous' prosecution in either case. There was one early retirement (not even officially a resignation) after the IRS scandal.
  - dctoedt 10y ago
    You betray your political leanings here: + If by "the Planned Parenthood story" you mean the allegations of selling body parts from fetuses, the story was fake from the get-go and the "citizen journalists" [sic] edited their recordings to push their right-wing agenda. [0] + Contrary to what right-wing conspiracy theorists claimed, the IRS wasn't targeting conservative nonprofits specifically; it was looking at other characteristics based on keyword searches. [1] [0] http://www.cnn.com/2015/10/19/politics/planned-parenthood-videos/ http://www.cnn.com/2015/10/19/politics/planned-parenthood-vi... [1] https://en.wikipedia.org/wiki/IRS_targeting_controversy https://en.wikipedia.org/wiki/IRS_targeting_controversy

onetwotree 10y ago

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've accepted the plea bargain, by the way, you can't challenge the sentence if new evidence comes up. What'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's life (we'll go death penalty!), drawing out a confession, and then be under no obligation to uphold their end of the "bargain". 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.

tn13 10y ago

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. The law enforcement always use the words like "we took this horrific sex offender off the street" and people generally cheer up such talk. In reality the guy was merely caught peeing in some bush. 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 "vigilante" attitude of law enforcement officials sooner or later they are going to come for you and me and no one will help us then. 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. 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.

staticautomatic 10y ago

As a jury consultant (AMA) I take issue with some things in this article, the most important of which are: 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. 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. I am sensitive to the "piling on" 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.