Looking at the comment thread here, it seems to me that many commenters are unaware, or at least fail to remember, that in the U.S. and Canada, and presumably many other Anglospheric common law jurisdictions, well over 90% of criminal cases are these days resolved by plea-bargaining and never reach trial.
This is an essential feature of how the criminal law system works today—the whole infrastructure of criminal courts would be overwhelmed to the point of collapse if it actually had to provide jury trials for more than a tiny minority of all defendants who get convicted. In the contemporary socially atomized and thoroughly bureaucratized society, in which law has become complex, vast, and abstruse to the point where it’s completely outside the intellectual grasp of the common person, trial by jury is little more than an ancient historical relic. Focusing on juries as a central issue of the modern criminal law makes little more sense than focusing on the monarchy as a central factor in the modern U.K. government and politics. Of course, jury trials provide good material for movies and TV shows, and like in many other things, folks who haven’t had any personal experience with the system tend to mistake what they seen on TV for reality.
The true backbone of the contemporary American criminal law are the discretion of the police and prosecutors to investigate, arrest, and bring charges, and the subsequent plea-bargaining procedure. You can still insist on a jury trial, but the system has developed to the point where prosecutors can wield threats that will nearly always make it safer to plea-bargain. They can crank up the list of charges to the point where even with a very small probability of being found guilty, the probabilistic expected penalty is higher than what you’re offered to plea-bargain for—and even if you’re innocent, it takes a good and very expensive lawyer to reduce this probability to a negligible level. Not to mention that if things reach trial, cops and prosecutors are sometimes—and arguably quite often—willing to use very dirty tricks, up to an including perjury and faked evidence.
All this is not necessarily bad. Honest cops and prosecutors may well be more accurate in determining guilt than typical juries—but any realistic analysis of the system should focus on them as the central decision-making agents on whose accuracy and honesty the quality of the system hinges, not juries.
Most hands of poker are decided without showing the cards. Does that make the cards irrelevant? Of course not; everything that happens is conditioned by the probable outcome if there were a showdown, as judged by the players in the hand. Changing one player’s hand could change everything, even if no one else ever sees it.
A change in the way verdicts are reached will be much more powerful, being seen by both sides. Therefore even if nothing is done about the plea bargain system (and something should be done), the key to the game is still the “showdown”.
All this is not necessarily bad. Honest cops and prosecutors may well be more accurate in determining guilt than typical juries—but any realistic analysis of the system should focus on them as the central decision-making agents on whose accuracy and honesty the quality of the system hinges, not juries.
I think cops and prosecutors are better at identifying perpetrators and even more accurately criminals; the problem is not all cops and prosecutors are honest, and of course even honest people make mistakes.
I do not think though, that 12 amateurs hashing over a mountain of evidence and statements are better or fairer than one person who is skilled at such a task.
So in a sense, I think the current system is “ok”—that is it is a terrible system and the only thing worse is any other system that has been tried (in large societies). The specter of a jury trial sets the stakes for everyone and does help keep cops and prosecutors honest to a significant degree. No prosecutor can have a losing record in jury trials and expect a long career, so they also have incentives to make deals or to dismiss cases that they don’t have the stones to try.
The specter of a jury trial sets the stakes for everyone and does help keep cops and prosecutors honest to a significant degree. No prosecutor can have a losing record in jury trials and expect a long career, so they also have incentives to make deals or to dismiss cases that they don’t have the stones to try.
That, however, is a double-edged sword. It also gives the prosecutor a strong incentive to use every dirty trick available to ensure a guilty verdict should the defendant refuse to enter a guilty plea. Since the cops typically have at least some incentive to cooperate with the prosecution, this can stack the deck heavily against a defendant who can’t afford a super-capable defense lawyer.
This is especially problematic considering that forensic labs are hardly a paragon of pristine scientific objectivity—they are run by the cops, after all, and base their work on lots of questionable “science”. Moreover, according to the stories I’ve read from defense lawyers, the truth of police testimony is normally taken for granted by juries, unless the defense can muster overwhelming evidence to the contrary.
Overall, it seems to me that unscrupulous prosecution supported by the police has a very good chance of railroading any defendants who can’t actively prove their innocence (and even those often won’t be able to pull it off without a very good and very expensive lawyer). Therefore, the net influence of the prosecutors’ incentives to win jury trials on the quality of the system is questionable.
Looking at the comment thread here, it seems to me that many commenters are unaware, or at least fail to remember, that in the U.S. and Canada, and presumably many other Anglospheric common law jurisdictions, well over 90% of criminal cases are these days resolved by plea-bargaining and never reach trial.
This is an essential feature of how the criminal law system works today—the whole infrastructure of criminal courts would be overwhelmed to the point of collapse if it actually had to provide jury trials for more than a tiny minority of all defendants who get convicted. In the contemporary socially atomized and thoroughly bureaucratized society, in which law has become complex, vast, and abstruse to the point where it’s completely outside the intellectual grasp of the common person, trial by jury is little more than an ancient historical relic. Focusing on juries as a central issue of the modern criminal law makes little more sense than focusing on the monarchy as a central factor in the modern U.K. government and politics. Of course, jury trials provide good material for movies and TV shows, and like in many other things, folks who haven’t had any personal experience with the system tend to mistake what they seen on TV for reality.
The true backbone of the contemporary American criminal law are the discretion of the police and prosecutors to investigate, arrest, and bring charges, and the subsequent plea-bargaining procedure. You can still insist on a jury trial, but the system has developed to the point where prosecutors can wield threats that will nearly always make it safer to plea-bargain. They can crank up the list of charges to the point where even with a very small probability of being found guilty, the probabilistic expected penalty is higher than what you’re offered to plea-bargain for—and even if you’re innocent, it takes a good and very expensive lawyer to reduce this probability to a negligible level. Not to mention that if things reach trial, cops and prosecutors are sometimes—and arguably quite often—willing to use very dirty tricks, up to an including perjury and faked evidence.
All this is not necessarily bad. Honest cops and prosecutors may well be more accurate in determining guilt than typical juries—but any realistic analysis of the system should focus on them as the central decision-making agents on whose accuracy and honesty the quality of the system hinges, not juries.
Most hands of poker are decided without showing the cards. Does that make the cards irrelevant? Of course not; everything that happens is conditioned by the probable outcome if there were a showdown, as judged by the players in the hand. Changing one player’s hand could change everything, even if no one else ever sees it.
A change in the way verdicts are reached will be much more powerful, being seen by both sides. Therefore even if nothing is done about the plea bargain system (and something should be done), the key to the game is still the “showdown”.
I think cops and prosecutors are better at identifying perpetrators and even more accurately criminals; the problem is not all cops and prosecutors are honest, and of course even honest people make mistakes.
I do not think though, that 12 amateurs hashing over a mountain of evidence and statements are better or fairer than one person who is skilled at such a task.
So in a sense, I think the current system is “ok”—that is it is a terrible system and the only thing worse is any other system that has been tried (in large societies). The specter of a jury trial sets the stakes for everyone and does help keep cops and prosecutors honest to a significant degree. No prosecutor can have a losing record in jury trials and expect a long career, so they also have incentives to make deals or to dismiss cases that they don’t have the stones to try.
jhuffman:
That, however, is a double-edged sword. It also gives the prosecutor a strong incentive to use every dirty trick available to ensure a guilty verdict should the defendant refuse to enter a guilty plea. Since the cops typically have at least some incentive to cooperate with the prosecution, this can stack the deck heavily against a defendant who can’t afford a super-capable defense lawyer.
This is especially problematic considering that forensic labs are hardly a paragon of pristine scientific objectivity—they are run by the cops, after all, and base their work on lots of questionable “science”. Moreover, according to the stories I’ve read from defense lawyers, the truth of police testimony is normally taken for granted by juries, unless the defense can muster overwhelming evidence to the contrary.
Overall, it seems to me that unscrupulous prosecution supported by the police has a very good chance of railroading any defendants who can’t actively prove their innocence (and even those often won’t be able to pull it off without a very good and very expensive lawyer). Therefore, the net influence of the prosecutors’ incentives to win jury trials on the quality of the system is questionable.