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John Langbein has asked whether hippopotamuses are to be found in New
York City. The answer is yes. Some live in the Bronx Zoo.277 Langbein also
has asked whether jury trials are to be found in America. Again the
answer is yes. The courts provide specimens for public examination each
year. There are even enough jury trials to keep a cable television
network on the air.
Nevertheless, one statistic dominates any realistic discussion of
criminal justice in America today. Ninety-three percent of the
defendants convicted of felonies in state courts plead guilty.278 The
percentage of convictions by guilty plea is still higher in misdemeanor
cases.279 Moreover, nearly half of the convictions in the cases that go to
trial are the products of trials before judges sitting without juries.280
The Constitution declares that "[t]he Trial of all Crimes, except in
Cases of Impeachment; shall be by Jury. . . ."281 It also declares that
"[i]n all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury . . . ."282 Langbein suggests
that Americans should replace the word "all" in these two constitutional
provisions with the words "virtually none." Our system of criminal
dispute resolution differs enormously from the one that the Sixth
Amendment was designed to preserve.283
At the time the Sixth Amendment was enacted, bench trials in serious
criminal cases were unknown. Nonjury trials became permissible in the
federal courts only in 1930.284 Indeed, the Supreme Court declared in 1874
that a defendant could not "be tried in any other manner than by a jury
of twelve men, although he consent in open court to be tried by a jury
of eleven men."285
Even in 1791, a defendant could plead guilty. Far from encouraging
guilty pleas in felony cases, however, the courts actively discouraged
them. Shortly before the American Revolution, Blackstone's
Commentaries observed that courts were "very backward in
receiving and recording [a guilty plea] . . . and will generally advise
the prisoner to retract it. . . ."286 Statements declaring the reluctance
of courts to accept guilty pleas appeared in American treatises
throughout the nineteenth century.287
John Beattie surveyed English court records at about the time of the
American Constitution and concluded, "Virtually every prisoner charged
with a felony insisted on taking his trial, with the obvious support and
encouragement of the court. There was no plea bargaining in felony cases
in the eighteenth century."288
The earliest reported American guilty-plea case reveals that
practices on the American side of the Atlantic were no different. In
Massachusetts in 1804, a twenty-year-old black man was accused of raping
a thirteen-year-old white girl, breaking her head with a stone, and
throwing her body into the water, thereby causing her death. When the
defendant pleaded guilty to indictments for rape and murder:
The Court informed him of the consequence of his plea,
and that he was under no legal or moral obligation to plead guilty; but
that he had a right to deny the several charges, and put the government
to the proof of them. He would not retract his pleas; whereupon the
Court told him that they would allow him a reasonable time to consider
of what had been said to him: and remanded him to prison. They directed
the clerk not to record his pleas, at present.289
When the defendant was returned to the courtroom, he
again pleaded guilty:
Upon which the Court examined, under oath, the sheriff,
the jailer, and the justice [who had conducted the preliminary
examination of the defendant] as to the sanity of the prisoner; and
whether there had not been tampering with him, either by promises,
persuasions, or hopes of pardon, if he would plead guilty. On a very
full inquiry, nothing of that kind appearing, the prisoner was again
remanded, and the clerk directed to record the plea on both
indictments.290
The report concluded that the defendant "has since been
executed."291 In the only other American decision prior to the Civil War to
discuss the guilty plea extensively, the persuasion of the court was
successful, and the defendant withdrew his plea.292
Raymond Moley's 1928 study, The Vanishing Jury293, reported the
percentage of felony convictions "by jury" and "by confession" in New
York State for an eighty-eight year period beginning in 1839. At the
outset of this period, only twenty-five percent of the state's felony
convictions were by guilty plea. In Manhattan and Brooklyn, the figure
was even smaller, fifteen percent. Moley charted a gradual increase in
this figure to about eighty percent statewide by the turn of the
century, then to ninety percent by 1926.294 In the years following Moley's
study, the figure continued to grow. It is ninety-six percent today.295
As cases of plea bargaining began to reach appellate courts in the
decades following the Civil War, the overwhelming reaction was one of
disapproval.296 Nevertheless, plea bargaining apparently became the
dominant method of resolving even serious cases in urban America at the
end of the nineteenth century and the beginning of the twentieth -- a time
when the bondsman, the ward politician, the newspaper reporter, the
jailer, and the fixer exerted an everyday influence on the
administration of criminal justice.297 Various crime commissions
demonstrated in the 1920s that plea bargaining had become common, and
many of the commissions indicated that the use of this route to
conviction had increased in the immediately preceding decades. For the
first time, the practice came to the attention of the public. Again the
general reaction-of scholars, the press, and the crime commissions
themselves -- was disapproval.298 The Supreme Court did not uphold the
constitutionality of plea-bargained waivers of the right to jury trial
until 1970.299
American criminal procedure has become an administrative process
rather than the adjudicative process it once was. Nevertheless, when
jury trial was routine, it was a reasonably summary procedure.300 As
recently as the 1890s, a felony court apparently could conduct a
half-dozen jury trials in a single day.301
The intervening century has seen a proliferation of procedures in
contested cases and, as a result, an inability to bring many contested
cases to trial. In 1990, the longest criminal jury trial in American
history came to an end two years and nine months after it began. This
trial did not involve financial machinations of great complexity or an
army of white collar defendants; the defendants were members of a
preschool staff charged with sexually abusing children at their school.
Of the two defendants whose cases reached the jury, one had spent five
years in pretrial detention and the other two years. The preliminary
hearing in the case had lasted eighteen months. The trial jury heard 124
witnesses; and after paring down the charges, the judge permitted
sixty-five allegations of molestation and conspiracy to go to the jury.
The jury acquitted one defendant but failed to reach agreement on the
other. When a retrial later the same year produced a second hung jury,
the prosecutor dismissed all remaining charges. The McMartin Preschool
case ruined some lives and cost the taxpayers over $14 million.302
Although this case was the product of atypical blunders,303
over-proceduralization has infected the American jury trial. Prolonged,
privacy-invading jury selection procedures, cumbersome rules of
evidence, the repetitive cross-examination of witnesses, courtroom
battles of experts (who sometimes are called "saxophones" because they
play tunes for those who pay them), jury instructions that all the
studies tell us jurors do not understand, and more, have made trials
inaccessible for all but a small minority of defendants. Lawyers extol
our trial procedures on Law Day and at bicentennial celebrations. They
tell us later that the courts would be swamped if we used them.
"Practical necessity" requires pressing the overwhelming majority of
defendants to abandon their day in court.
Robert H. recently spent six months in an Atlanta jail without any
formal charges filed against him and without ever appearing in court or
seeing a lawyer. On the day that he met the public defender who
represented him, the public defender advised him to plead guilty.
Robert's was one of thirty felony cases in which this public defender
made court appearances that day -- and one of more than five hundred cases
that she handled during the year. Robert followed her advice.
The authorities later realized that Robert H. was not guilty of the
charge to which he had pleaded guilty; through a bureaucratic error,
they had confused him with someone else. Despite Robert H.'s innocence,
however, the public defender may not have given him bad advice. She told
him that, if he pleaded guilty, he could go home that day; and if he
wanted a trial, he could have one -- after waiting in jail for perhaps
another year.304 Someone should tell Robert H. about America's recent
celebration of the Bicentennial of the Bill of Rights.
If Paul Lewis Hayes can be located in a Kentucky prison, someone
should tell him about the Bicentennial too. Hayes was a repeat offender
charged with uttering a forged $88 check. The prosecutor offered to
permit him to plead guilty in exchange for the recommendation of a
five-year sentence. Hayes replied that he was innocent and that he
wanted a jury trial. The prosecutor then carried out a threat that he
had made during the negotiations. He returned to the grand jury and
obtained an indictment under the Kentucky Habitual Criminal Act. Hayes
was convicted at trial, and the court imposed the life sentence that the
Habitual Criminal Act demanded. In Bordenkircher v Hayes, the
United States Supreme Court upheld the penalty that Hayes had incurred
by exercising his Sixth Amendment right.305
The Constitution told Paul Hayes that he had a right to jury trial.
The courthouse regulars (including the Supreme Court) told him that the
exercise of this right was a crime. It was in fact a more serious crime
than uttering a forged check. Uttering a forged check was "worth" only
five years' imprisonment. The crime of standing trial before a jury was
"worth" imprisonment for life.
CONCLUSION
The American right to jury trial now resembles the hippopotamus in
New York City. As John Langbein observes, it's a goner. Unpropertied
white men, African-Americans, the members of other minority groups, and
women have taken their places in the concert hall, but the orchestra has
disbanded. The protagonists on both sides of the nineteenth-century
battle over the authority of judge and jury to resolve questions of law
have suffered resounding defeat. Today prosecutors are the judges of law
and fact.
Jefferson thought the jury an even more vital instrument of democracy
than the popular election of legislators.306 Tocqueville called the jury a
form of sovereignty of the people and a school in which citizens learn
their rights.307 Only a shadow of this communitarian institution has
survived into the urbanized America of the late twentieth century.
One of us recently received a summons for jury duty, then spent a day
with dozens of his fellow citizens in a jury room with two television
sets playing on different channels. One of our fellow citizens, a taxi
driver, reported that he had purchased a dress shirt for the occasion.
Neither this taxi driver nor anyone else, however, was called from the
jury room to offer his wisdom on matters of importance to the community.
Perhaps some of the people who waited all day in this jury room ended
the experience with the sense of gratification (or inspiration) to which
a citizen who participates in public affairs is entitled. The final
sentence of the information sheet that we received upon reporting for
duty reminded us that we should. It read:
Please be assured that even if you do not serve on a trial, just by
being available you have made it necessary for all parties appearing in
court to revert to a bench trial, settle by agreement, plea bargain,
voluntarily dismiss, etc., thereby saving the court's time, and making
it possible for our system of justice to work.308
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