The American Jury System / Edition 1 available in Paperback
In this important and accessible book, a prominent expert on constitutional law examines these and other issues concerning the American jury system. Randolph N. Jonakait describes the historical and social pressures that have driven the development of the jury system; contrasts the American jury system to the legal process in other countries; reveals subtle changes in the popular view of juries; examines how the news media, movies, and books portray and even affect the system; and discusses the empirical data that show how juries actually operate and what influences their decisions. Jonakait endorses the jury system in both civil and criminal cases, spelling out the important social role juries play in legitimizing and affirming the American justice system.
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The American Jury System
By Randolph N. Jonakait
Yale University PressCopyright © 2006 Randolph N. Jonakait
All right reserved.
The phrase "America's jury system" implies that there is only one. In fact, America has many jury systems. Every state, the federal government, and the District of Columbia has its own courts, laws, legal procedures, customs, and practices. These multiple legal jurisdictions yield multiple jury systems. Even within a single jurisdiction the jury system can vary from one community to another. Moreover, systems for adjudicating criminal cases resemble, but still differ, from those used for civil matters.
All these systems, however, do share enough essential characteristics to make it possible to talk about the American jury system. Nationwide similarities among jury systems are stronger in criminal cases than in civil ones. The Sixth Amendment to the federal Constitution guarantees that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." This right to a jury trial does have a limitation. The Constitution says "all," but the Supreme Court has concluded that the Sixth Amendment right does not guarantee jury trials for "petty" offenses. The Court has concluded that crimes carrying apotential punishment of less than six months' imprisonment are presumptively petty, and the accused charged with such a crime is not constitutionally entitled to a jury trial. This presumption can be overcome if additional penalties such as large fines indicate that the legislature intended the crime to be "serious." But at least so far, the Supreme Court has not required a jury trial for any offense that did not authorize a sentence in excess of six months.
Since 1968 this constitutional right to a jury trial has applied to both state and federal criminal trials, which means that the same constitutional standards for trials apply to all criminal cases throughout the country. The same is not true for civil matters. The Seventh Amendment to the federal Constitution guarantees jury trials in civil cases, but this Bill of Rights provision applies only to federal cases. Each state does, in fact, afford jury trials in civil matters, but each state has more latitude in structuring civil jury trials than criminal ones. Consequently, the civil jury systems demonstrate more diversity than the criminal jury systems.
RESOLUTION OF CRIMINAL MATTERS WITHOUT TRIALS
Jury trials are only one way to resolve legal disputes. In criminal matters, the first level of resolution occurs when a citizen can, but chooses not to, report a crime. For practical purposes, this ends the matter, and while different studies reach different conclusions about the level of underreporting, all concur that many crimes go unreported.
A similar kind of resolution occurs when the police can, but choose not to, bring criminal charges. Law enforcement authorities have wide discretionary powers. Nothing requires them to make an arrest every time they believe they legally can. For example, when the police come upon a boisterous group, they may have probable cause to arrest for disturbing the peace, but often the officers will simply tell the congregants to quiet down and move on. A potential criminal case has been resolved. Citizens have no legal mechanism to force the police to make an arrest, and a police decision not to do so often ends a criminal matter.
Criminal matters are also resolved, in some sense, when a case is not "solved." The percentage of reported crimes that are "cleared" by an arrest varies according to the category of the offense. Roughly two-thirds of homicides lead to an arrest, while only about one-seventh of reported burglaries are followed by an arrest. For felonies-serious cases that carry potential punishments of at least one year-the overall clearance rate is about 20 percent. In short, a large number of criminal matters are "resolved" because no one is arrested for them.
Like the police, prosecutors have a screening function. They do not have to file charges with the court just because the police have made an arrest. A prosecutor may decide not to go forward for many reasons, including, for example, insufficient evidence or the victim's reluctance to press a criminal case. Just as citizens cannot force the police to make an arrest, neither can they force a prosecutor to file charges. How often prosecutors choose not to prosecute an arrested person varies widely not just from state to state, but from locality to locality. The nationwide average seems to be about 10 percent.
Serious crimes pass through yet another filter. About a score of jurisdictions, including the federal courts, require a grand jury indictment for felony prosecutions. The grand jury, a body of ancient lineage, consists of a group of citizens, usually twenty-three, drawn from the community. The grand jurors determine whether there is sufficient evidence for a person to be charged with a felony. To do this, these jurors meet in secret without the defendant being present and hear only evidence presented by the prosecutor. If a majority of the grand jurors believe the evidence is sufficient to sustain charges, an indictment charging a person with a crime is returned. Nearly all grand jury presentations, about 95 percent, result in an indictment.
In most jurisdictions, however, felony prosecutions do not require a grand jury indictment but can proceed by what is called an "information." Generally in these locations a preliminary hearing is required before the prosecutorial information can be filed. This hearing proceeds publicly before a judicial officer; the accused is present and can cross-examine witnesses. Since the purpose is not to determine whether the accused is actually guilty but only whether there is sufficient proof to sustain a charge, the full evidence is seldom presented. The rate of dismissals varies widely and correlates naturally to the screening done beforehand by the prosecutor. On average, less than 10 percent of the cases are dismissed as a result of this kind of preliminary hearing.
Various kinds of pretrial motions may be made after the institution of the charges. These include attempts by the defendant to prevent evidence being presented at trial because it was obtained in violation of the Constitution. If additional information is needed to decide a pretrial motion, a hearing is held before a judge without a jury. Dismissals do result from these pretrial motions, but only in less than 1 percent of cases.
Even after these screening stages, not all remaining cases go to trial. The prosecutor still has the power in advance of a scheduled trial date to dismiss a case. This may happen for any number of reasons as circumstances change and new information develops.
Most criminal cases, however, never go to trial because they are "plea bargained," that is, the defendant enters a guilty plea in exchange for concessions. Those concessions might permit a guilty plea to only one charge when several are pending; it might allow a plea to an offense lesser than the most serious charge; it might have the prosecutor make a sentence recommendation; or in some places, the judge might commit to a specific sentence. The kinds of concessions vary from case to case and from locality to locality. And although in a few places prosecutors claim not to plea bargain, most defendants still plead guilty expecting that sentencing judges will be more lenient with those who admit guilt than with those who force a trial. Guilty plea rates vary around the country, but most cases that survive the initial screenings result in a guilty plea. About 90 percent of the criminal defendants who are convicted plead guilty.
Plea bargaining affects the mix of cases that go to trial. In entering negotiations, the accused's overwhelming concern is with the likely severity of the sentence. He weighs the possibility of an acquittal against the probability that a jury conviction will lead to a greater sentence than if he pleads guilty. Meanwhile, the prosecutor has to consider how much she wishes to use limited trial resources on a particular case as well as the desire to get a conviction that is certain from a guilty plea. The rational plea bargaining parties are thinking along these lines: if the accused is convicted by a jury, he will receive a ten-year sentence, but the likelihood of a jury conviction is 80 percent. Thus, the accused stands a 20 percent chance of being exonerated and having no jail sentence, but an 80 percent chance of getting ten years. The prosecutor has the incentive to offer a plea that will result in a lesser sentence to remove the possibility that no punishment at all will be imposed, and the accused has the incentive to accept the lesser sentence to remove the 80 percent odds of ten years. Plea bargaining, then, is a negotiation over what lesser sentence will be acceptable to both sides. Under these conditions, trials are most likely to result when the parties markedly differ over the chances of a jury's convicting or what the sentence will be if the jury convicts.
If, however, the prosecutor is confident that a jury will find guilt and a ten-year sentence will be imposed, the prosecutor gains nothing by plea bargaining on that individual case. The more certain it is that the accused is guilty, the less reason for the prosecutor to offer a plea. Moreover, as Samuel Gross explains, from the prosecutor's standpoint, "it is obviously sensible to try to restrict trials to cases where the outcomes will be useful-i.e., convictions. If possible, likely losses at trial are avoided through plea bargaining; if not, they may be dismissed even if the prosecutor is convinced of the defendant's guilt. Regardless of their belief in the defendants' guilt, prosecutors focus on the easiest cases-the ones with the best evidence-since those are the cases where their limited resources will have the greatest impact."
Prosecutors want juries to hear clear cases of guilt. They increase their chances of this by dismissing cases or-more often-resolving them through plea bargaining. "Plea bargaining is undertaken after the decision to prosecute has been made. The prosecutor has become an advocate seeking a conviction. If the prosecutor sees weaknesses in his case, his reaction is not to dismiss the case. Instead, he offers a good deal to the defendant. From the prosecutorial standpoint, the most irresistible deals will, naturally, come in the weakest cases-a half a loaf will be better than none. The good deal is often irresistible, and the defendant pleads guilty."
Mandatory sentences also affect which cases go to trial. If there is no or limited sentencing discretion after a conviction, the clearly guilty defendant may not have incentives to accept a plea. For example, some states require that a third felony conviction result in an automatic life sentence (the "third strike" concept), and they prohibit pleas to lesser offenses when the third felony is charged. An accused already convicted twice of robberies may insist on a trial on the new robbery case even if he confessed and was caught in the act. Although he may have little chance of winning the trial, he has little inducement to plead guilty. He is better off hoping for a miracle verdict than admitting guilt, because that guilty plea will still result in a life sentence.
For such reasons, relatively clear cases of guilt often are not resolved by plea bargaining and go to trial. It is not surprising, then, that roughly 60 to 80 percent of criminal juries convict.
The political nature of public prosecutors also affects the mix of cases that criminal juries see. Prosecutors, concerned as they are about public opinion, are less likely to offer a plea bargain and appear to be compromising justice when the case has captured wide public attention. Murder cases often get that sort of notice, especially when the death penalty is at stake. Consequently, a higher proportion of those charged with murder have jury trials than do those charged with other crimes. "Whether it's because prosecutors take weaker cases to trial or because they insist on the maximum penalty, homicide defendants are more likely to face a jury than other criminal defendants. In 1992, for example, 12% of robbery convictions across the country were obtained at trials, of which 8% were jury trials, while 41% of murder convictions were after trial, including 33% that went to jury trial. In other words, since pre-trial sorting does less to winnow homicide cases than other prosecutions, homicide defendants are more likely to face the chancy ordeal of a trial."
Thus, both a rigid stance on plea bargaining and the willingness to take even weak cases to trial increase the rate at which defendants charged with murder go to trial. Consequently, "Prosecutors lose a much higher proportion of murder trials than other felony trials, about 30% vs. 15%.... [T]he most likely explanation is that in murder cases they are willing to go to trial with comparatively weak evidence."
Critics often deride plea bargaining for permitting criminals to receive lesser punishments than they deserve. After all, people plead guilty to avoid the longer sentences that a jury conviction would bring. These critics overlook the opposite effect. Since prosecutors are more willing to bargain in weak cases than in strong ones, sometimes defendants who would have been acquitted by a jury are induced to take such pleas. Albert Alschuler states: "The surveys of the 1920s indicated that increased plea bargaining might have led some defendants to plead guilty although they would not have been convicted at trial. As the percentage of convictions by guilty plea grew in that period just preceding the 1920s, both the percentage of convictions by trial and the percentage of acquittals showed a sharp decline.... [I]t seems probable that the increased ranks of guilty-plea defendants came in part from defendants who would have been convicted had they stood trial and in part from defendants who would have been acquitted."
BENCH TRIALS IN CRIMINAL CASES
Only about 5 to 15 percent of felony cases actually go to trial. Misdemeanors, which greatly outnumber felonies, see even a smaller percentage going to trial. But not all of these are jury trials. If the charged crime is "petty" and a jury trial is not required, a bench trial is held. A single judge determines whether guilt has been proven. But even when a jury is authorized, many of the cases are still bench trials.
The accused may desire a bench trial for a number of reasons. She may fear that pretrial publicity or the nature of the crime has produced a strong community sentiment against her and that a judge alone will be able to focus on the evidence dispassionately.
Excerpted from The American Jury System by Randolph N. Jonakait Copyright © 2006 by Randolph N. Jonakait. Excerpted by permission.
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