Criminal Jury Trials are More Scarce

About once a year a major news organization runs a story lamenting the infrequency of criminal jury trials. Don’t fall for the nostalgia.

Three quotes from the August 7, 2016 New York Times:

[The lack of criminal jury trials is] 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.”


“The entire system loses an edge,” [Frederick P. Hafetz, a defense lawyer and a former chief of the criminal division of the United States attorney’s office in Manhattan] added, “and I have no doubt that the quality of justice in our courthouses has suffered as a result.”

Criminal Jury Trials are Scarce for a Reason

The quotes suggest that the American Criminal Justice System is malfunctioning. It is not. Defendants are rational actors responding to the American Criminal Justice System incentive structure. There is a reason, as the Wall Street Journal reported in 2013, 97% of all federal criminal cases result in guilty pleas.

From the Bureau of Justice Statistics (FY 2006 through FY 2013) – Note that “not convicted” includes cases dismissed as well as acquittals:

Verdict or outcome of trial Statistic 2006 2007 2008 2009 2010 2011 2012 2013
Convicted N 79,904 79,356 82,823 86,975 89,902 92,240 87,908 82,838
Not convicted N 8,190 9,153 8,905 8,916 8,587 9,260 8,352 7,295
Missing/Unknown N 0 0 0 0 0 0 0 0
Total Records N 88,094 88,509 91,728 95,891 98,489 101,500 96,260 90,133
Total Records Returned by the Query: 88,094 (2006) , 88,509 (2007) , 91,728 (2008) , 95,891 (2009) , 98,489 (2010) ,101,500 (2011) , 96,260 (2012) , 90,133 (2013)
Created on: 09-Aug-16 – 11:14 AM
Citation: BJS’ Federal Justice Statistics Program website (


Defendants that proceed to a federal criminal jury trial have a ten percent (10%) success rate. They face a stark choice: the certainty of a smaller sentence, or the ninety percent (90%) chance of a conviction.  A defendant must chose – even if innocent – between a few years in prison or a ninety percent (90%) chance of a few decades.

The Client has a Right to Know

Prosecutorial overcharging, mandatory minimums, better investigative techniques, all stack the deck against a defendant. Lawyers are obligated to make these facts clear to their clients. For all our bluster as a profession, and particularly our misplaced desire to match wits with our opponents, a criminal defense attorney’s true purpose is to advise. Attorneys go home at the end of trial. Our clients might go to jail. We owe them the truth.

This means often painting a bleak picture. That is why we should meet cries for more trials (under the current system) with skepticism. Articles like these tempt readers to succumb to the siren song of days past. This is folly and those days may or may not have been more just.

Remember, sometimes judges bemoan the jury trial’s absence simply because they are bored:

“We’d love to have more trials; most of us enjoy trials,” said Judge Alvin K. Hellerstein, who joined the bench in 1998.


As for Judge Furman, he is still waiting for his second criminal jury trial since becoming a judge in 2012. He almost had one earlier this year, but a scheduling conflict with a civil trial meant he had to pass it to another judge. . . “[] there’s a tinge,” he added wistfully, “of what might have been, that we thought we had one, but it got away.”

The system works exactly as designed.


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