Many thanks to Eugene for inviting me to make some comments on some recent research.
A few years ago I noticed in the Sourcebook of Criminal Justice Statistics that federal defendants who stand trial are much more likely to be acquitted in a bench trial than by a jury. This seemed odd to me – I had always assumed the opposite was true. So I studied government records for federal trials between 1989 and 2002 and found a number of surprising things.
First, I found that the gap between bench acquittal rates and jury acquittal rates was quite large: over the 14 years I studied, the average conviction rate in jury cases was 84%, while judges convicted slightly more than 50% of the time. Second (using other data), I found that this gap was a recent phenomenon. Between the early 1960s and late 1980s, the conviction rates for judge and jury was roughly the same; the 20 years before that, judges actually convicted much more often than juries.
So the goal was to try to explain why this “acquittal gap” between bench and jury exists, and secondarily, why it had grown so large since the late 1980s. To make sure I wasn’t stumbling around in an academic fog, I started by interviewing two dozen federal prosecutors and defense counsel to see if their instincts were the same as mine. They were: of the 24 lawyers I spoke to, only a very few knew or guessed that judges are more likely to acquit. The rest were mildly to strongly certain that juries were more favorable to the accused.
During the coming week discuss some of the variables I looked at -- type of case, seriousness of charge, type of defense lawyer, strength of the evidence, etc.), as well as some of the conclusions I drew. Questions, comments, and criticisms are welcome, aleipold@law.uiuc.edu. The full paper can be found at 83 Wash.U.L.Q. 151, from SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=843606.
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Thus, the innocent may seek bench trials, while the guilty seek jury trials. And there may be fairly few bench trials, because most criminal defendants are guilty, and their attorneys would rather have their cases heard by jurors, who tend to both acquit more guilty jurors even though they convict more innocent ones.
Frankly, outside of a few areas, such as drug conspiracy cases (where false accusations to get a plea bargain are common), certain types of fraud cases, and date-rape and child-molestation cases, there aren't many innocent criminal defendants.
So when you ask a criminal defense attorney who is more likely to acquit their client, they're thinking of who is most likely to acquit the average (i.e., guilty) defendant, not an innocent defendant.
What is your basis for that observation? What makes you think that experienced judges are better at separating the guilty from the innocent? Isn't it possible that judges become jaded or cynical over the years?
You might be right, but I don't know how you can be so certain. If we had a reliable method of determining which defendants are "actually innocent," wouldn't we use that instead of holding trials?
The argument isn't that judges are necessarily more or less accurate, but that they're more predictible, and so a defendant with a case that will appeal to a judge more than to a jury is likely to know this and be able to choose appropriately.
That case that was linked here a few weeks ago, where the jury decided a case by flipping a coin. I'd say that jury at least didn't understand the difference between "proved beyond reasonable doubt" and "what the hell maybe"; one would think most judges have better idea.
My medical practice is one town from Newark NJ. I have many city employed defense attorneys as patients. To make life more interesting I usually ask patients questions about their professional lives. I have uniformly asked what percent of their personal clients are guilty. The number 90% is amazingly consistent.
Marginal cases are winnowed out in the charging process or, in many cases, are resolved by some kind of plea agreement. I suspect that bench trials most often occur where the facts are not in dispute and the question is one of the proper application of law to the facts.
This observation ignores the strong argument made by Hans, above, and assumes that correlation equates to causation. It may well be that innocent defendants are more likely to prefer a bench trial and that guilty defendants prefer the confusion attendant to a jury trial. It does not follow that a given defendant has three times the chance of acquittal if he opts for a bench trial.
That was my first thought as well. One way to test this would be to compare the percentages that Professor Leipold found with corresponding percentages in state courts.
Now why is there the big difference in conviction rates? From what I have seen, juries are more likley to put someone away if they look dangerous than are judges (any one judge perhaps not, but as a group anyway). Also I think HOW lawyers decide on whether to go to a jury or have a bench trial has a significant impact in the outcome. And it might be that because lawyers think the judges will be more likely to convict, some cases that would do better as a bench trial are shifted to a jury trial. Also having an impact is that since lawywers think judges are more likely to convict, perhaps lawyers only choose bench trials when they have a high level of confidence of a win (meaning that judges convict less because they only get cases where a conviction is less likely).
Net result: bench trials only when defendant really wanted it. You'd expect a higher rate of acquittal in those cases.
That fits in with what several commenters have mentioned above.
1.It looks like the current balance of bench vs jury is based on the last big study done in 1945. People saw the reverse numbers and sort of responded at the time. We will probably see another shift after this one since people are natural game theorists. You lawyer types are probably very intuitive about that topic.
2. (Page 166) Looking at the actual trend in the numbers of bench trail vs conviction rate, and the jury trial vs conviction rate, I was surprised to see the rose or fell in step with each other. As the number of bench trails fell, so did the conviction rate. # of jury trials rose, and the conviction rate rose. Obviously, this shows cases moving en masse.
3.(pp 171 and 172, the most interesting part)
Before I talk about this, I recommend looking at this article entitled: "why is third and two a passing down?"
http://www.pro-football-reference.com/blog/wordpress/?p=50
It covers the concept that these two pages show.
The conviction rate of crimes across the board (property, violent, regulatory, etc..) are almost the same in jury trials, about 80% -except regulatory, at about 60%- Bench trials are lower across the board, the closest is a couple percent difference in the regulatory category. Page 172 shows what's going on though. People do move trial to categories that they believe have better rates, in this case, the trial that people believe the bench will be lenient isn't the regulatory one, but the Public Order category with roughly 45% of those being bench trials (the rest are a little below 20%). In regulatory (the type I would think most laymen wouldn't understand), 82% go to jury, which is the average split between jury and bench.
I still have more reading, but pp171 and 172 are intersting in themselves.