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1 Crim. L. Brief 3 (2006)

handle is hein.journals/crimlbrf1 and id is 1 raw text is: THE TWENTY-FIRST CENTURY JURY:
WORST OF TIMES OR BEST OF TIMES?
Valerie P. Hans*

I am pleased to be invited to reflect on the
contemporary American jury for this issue of the Criminal
Law Brief In thinking about legal developments, new research
findings, and the continuing swirl of controversy over this
venerable  American  institution, I  observe  the  same
paradoxical condition that Charles Dickens found in 18th
Century London: It was the best of times; it was the worst of
times. There is evidence of both the expansion of jury trial
rights, yet contraction of jury trials. Research evidence
indicates that juries perform well, yet the 21st Century jury
confronts more complex decision making tasks and continuing
doubts about its fairness and competence.1

Our starting point is the rapidly declining us
criminal jury. Centuries ago, trial by jury was the
method of resolving criminal charges; but it has be
downward slide for some time, with judges and es
prosecutors taking over more and more of the jury's fi
Juries waned as the legal system    became incr
professionalized. Over the last few decades, a nu
factors have conspired to
reduce jury trial rates even
further. One, of course, is
the increasing cost of a trial.   . o
The     introduction    of   7        -
sentencing  guidelines and   'S so
mandatory        minimum     J  ogQ0
sentences constitutes another   000
important factor. Guidelines
and  mandatory   minimum

sentences make the gamble
of a jury trial less attractive
to      defendants     and
consequently   bolster  the
power   of prosecutors to
settle cases through  plea
agreements.
More recent figures
show that the jury trial rate
has plummeted. Researchers
at the National Center for
State Courts examined the

pre
(Se
sky
cri
tria
res
sub
19'
the
tria
feh
dis
20(
jur

se of the       Ju5
primary        cas

valence of jury trials in state courts from 1976 to 2002.3
'e table below). They found that although criminal filings
'rocketed during this time period, the absolute number of
minal jury trials decreased by 15%.4
The    jury          1-i
T  Federal District  State Courts of
Courts         General
Il  rate,   as   a          1            i   Jurisdiction
ult,     dropped             Filings  Jury  Filings  [Jury
)stantially.    In   I              Trials         I Trials
76, for instance,    Cvi    260,271 14000  7,171 .842-° ;3125
ewer  e 52 jury     Criminal 59,923 12268I 4924710  54625
s per      1,000                   32
Total   320,194 7,268 12096552 1 87,750
ony           case.                    i
positions.     By
02,   the   felony
y trial rate was
t 22   per 1,000
es.5

een on a               A decline in the proportion of cases resolved by jury
specially      is also apparent in federal trial courts, where juries now
6
anction.2      resolve fewer than 5% of criminal dispositions. Indeed, one
easingly       might argue rather convincingly that the criminal jury is
mber of        becoming so rare that it will fade into oblivion before much of
the 2lst Century is gone.
Jury trials are
S.           .fewer and they appear to
--------------- include                                 m ore
---challenging evidence for
juries to evaluate. In the
mid- 1950s,     when
Kalven   and    Zeisel
began   their  famous
82 , 14   9 e Uo '9 .  4 i-e SS 2J, oo          national study of jury
trials,                 the   majority
(72%) of the criminal
jury  trials that they
studied  included  no
expert witnesses.7 Trial
judges are more likely
J- --u   ~to rate today's criminal
...                                       jury trials as complex.8
Today, it is also more
Benri<ri,     common      for   the
....- .. attorneys  to    offer
2 1964 1988 19138 !9. 199? 1994 19. 1998 2003 200  experts at trial. These
experts might include

Criminal Law Brief

'976  1978  1980  l98

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