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"In jury trials, prosecutors have not only a huge advantage, but also a perverse incentive to lie and cheat."

The prosecutorial advantage is even bigger in grand juries (ie. the juries that decide whether the suspect will be charged or "indicted" with a crime), where only the prosecution's side is heard and the standard used to indict is much lower than the "beyond a reasonable doubt" standard used in a real trial. The running joke being that a good prosecutor could indict a ham sandwich.

It's after indictment but before trial that the prosecution pressures the defendant to take a plea deal (ie. plead guilty to reduced charges) to avoid risking going to jail for a much longer time and bearing the insane expenses of a trial.

To my memory, in the US only something like 6% of indictments actually go to trial, where (as you point out) the prosecutors have a huge advantage. 94% of the time inicted defendants plead guilty and never actually get a trial. In some cases, like with Aaron Swartz, they commit suicide.

So for the overwhelming majority of cases, it's not what happens at trial that matters (as they never get a trial), but rather what happens in the even more skewed for prosecutorial advantage grand jury that matters -- a grand jury where defendants and defense attorneys are not even present and where their side is not heard.

Former public defender here.

>90% percent of defendants plead guilty before trial because 90%+ of defendants are actually guilty of the crimes they've been charged with. In most cases, the defendants accept their guilt and are simply trying to get the best deal (i.e., least prison/jail time) as they can.

>>90% percent of defendants plead guilty before trial because 90%+ of defendants are actually guilty of the crimes they've been charged with. In most cases, the defendants accept their guilt and are simply trying to get the best deal (i.e., least prison/jail time) as they can.

Except that a disproportionate percentage of poor defendants (who can't afford expensive lawyers) plead guilty before trial because their overworked and underpaid public defenders advise them to.

Logic is that pleading guilty before trial gets you a shorter sentence than going to trial. The alternative is going to trial and being incorrectly found guilty and getting a larger sentence for a crime you didn't commit (your public defender has limited time/resources to make a great case for you).

The American Justice system is particularly unjust to the poor.

Edited for clarity

Except that a disproportionate percentage of poor defendants (who can't afford expensive lawyers) plead guilty before trial because their overworked and underpaid public defenders advise them to.

No, a disproportionate percentage of poor defendants plead guilty because they're actually guilty and their underpaid public defenders have advised them its not worth the effort to fight the charges--for the PD or the defendant.

Especially since, as you helpfully pointed out, the DA is less willing to give shorter sentences to guilty defendants who demand a trial. In this context, "shorter" meaning shorter than the likely sentence imposed by the judge after trial, usually even shorter than the statutory range imposed if the defendant is found guilty at trial. This is why defendants plead before trial--in many jurisdictions its the only way you can get a sentence less than the range unless you have a fantastically expensive lawyer (like the lawyer for Brock Turner, the Stanford Student Rapist).

The alternative is going to trial and being incorrectly found guilty and getting a larger sentence for a crime you didn't commit (your public defender has limited time/resources to make a great case for you).

You appear to have a Law & Order understanding of how criminal defense works. In the real world, even private attorneys spend most of a case attacking the DA's case, not building their own case. The Defendant doesn't need to prove anything.

Comes to the same thing. You get all the 'advocacy' you can afford, and the poor cannot afford any. So they give up early.

Are you sure they're actually guilty, and not just trying to get out of jail so that their lives don't fall apart?

Every part of the American justice system pushes people towards confessions:

a. People are sent to jail pre-trial. This automatically disrupts their lives, as even a few days in jail will often cost them their jobs. [1]

b. People can be kept in jail for months pre-trial, costing them their houses and possessions as well.

c. The government can freeze or seize a defendant's assets (effectively without cause), rendering them incapable of defending themselves. They can (and do) hold these assets hostage to coerce a confession. Thankfully, the worst of these practices have been struck down recently [2]

d. Being unable to pay for your own defense lawyer gives you at best an overburdened public defender (poor defense), and at worst no legal representation whatsoever (no defense) [3]

e. Bail eliminates the only remaining way to avoid jail for the poor or those with frozen/seized assets [4]

f. Overly harsh penalties make it too easy to completely destroy someone's life forever. Even 10 years is ridiculously high, especially considering there's no path to reintegration into society in America. You're pushed outside and left, destitute, to your own devices. It's far preferable to start with a scarlet letter now than in x years, older, less employable, with zero assets.

g. Plea deals, while well intentioned, have become de-facto extortion due to the other problems in the American system. "Take the deal or else we'll keep you in jail, and maybe even tack on a bunch of extra charges to keep you here for decades". Even without this problem, plea deals are a corruption of justice. Either someone is guilty and deserves the punishment, or they don't.

A conviction rate above 80% is automatically suspicious, simply because no police department is that efficient. America's conviction rate rose from 75% in 1972, to 93% in 2012, and is still rising. Couple that with an incarceration rate rivaled only by authoritarian regimes, and I'm VERY suspicious of statements like "90% of defendants are guilty".

[1]

https://www.americasquarterly.org/aborn-prisons

[2]

http://www.abajournal.com/magazine/article/court_says_crimin...

[3]

https://www.cbsnews.com/news/inside-new-orleans-public-defen...

[4]

https://eu.tallahassee.com/story/news/2018/08/23/federal-jud...

https://eu.usatoday.com/story/opinion/policing/spotlight/201...

Further compounding this is the sheer amount of work and cases public defenders have to contend with, they are over whelmed. In New Orleans, they have 50 public defenders for 22,000 cases, to the point where they are refusing to represent on certain felony cases. Which means the accused gets to hang out in jail.

Article is a quick read and does a good job explaining the mindest of people who plead guilty to crimes they did not commit: https://www.cbsnews.com/news/inside-new-orleans-public-defen...

This is why you should avoid waiving your right to a speedy trial when you have a public defender.

While in THEORY it should give them more time to prepare, more than likely you'll get 20~30 minutes of prep time either way on the day of your trial but spend longer in jail just waiting.

If you have a private defender, it might make a lot of sense to waive, since they can use that additional time to assemble enough evidence for either court or a better deal.

But in modern US "justice" even if you're innocent expect to take a plea. That's just how it works now.

> This is why you should avoid waiving your right to a speedy trial when you have a public defender.

That makes sense, but there's a coordination problem. If everyone invoked their right to a speedy trial, the system would indeed collapse under its own weight. But the first set of people to use that strategy would be at a disadvantage since their own lawyers would have less time to prepare. Everyone wants to take advantage of this right but no one wants to be the sacrificial lamb, especially since there's not even a guarantee that enough other people will follow suit (your "sacrifice" might really be for naught).

Perfect example of large scale prisoner's dilemma (with more than 2 prisoners).

I think his whole point is that the public defender only has time to put in ~30 minutes either way. So why hang out in jail for the days the public defender is just going to spend working on other cases?

That makes sense, but there's a coordination problem. If everyone invoked their right to a speedy trial, the system would indeed collapse under its own weight.

Yes, and it is glorious...from the perspective of a defense lawyer. Because as soon as the DA realizes they can't just railroad defendants, they start getting realistic about the plea bargains they offer and which cases to triage due to lack of evidence.

I've seen it happen before (the entire local defense bar refused to wave speedy trial rights) and the DA held out for about 1.5 days before buckling.

In practice, how is a "speedy trial" defined?

By waive do you mean invoke? Because otherwise this makes no sense.

You have a right to a speedy trial by default. You can only waive that right, which many people do in order to have more time to build a defense. Someone1234 is saying that people making use of indigent defense resources _should not_ follow that strategy, which is to say that they should _preserve_ their right to a speedy trial. Because indigent defense resources are stretched so thin, delaying your trial to build a defense won't do any good because public defenders will only use the extra time to work on other people's trials. Since you're indigent (poor), you probably can't afford bail or a bondsman, so all that extra prep time that in reality goes toward defending other people involves you sitting in jail. As a result, you'll lose your job plus whatever other resources you have, which makes you even more poor. People end up pleading guilty to crimes they didn't commit just to get out of that vicious cycle.

In a system with professional judges, that wouldn't fly, as the trained judge would see through their shenanigans and rebuke them.

But professional judges oversee jury trials. I sat on an 8 week trial and the judge very tightly controls prosecutorial conduct, with usually the defense raising objections.

No, by professional judge I mean in the German style, where the judges decide the verdict, are not elected, and must undergo 5 years of schooling and a one year apprenticeship, plus have a ton of legal work experience.

More on the German style, "Land without Plea Bargaining: How the Germans Do It (1979)", https://news.ycombinator.com/item?id=5059044. Although I have read that they use plea bargaining more now. While the lens of the article is on plea bargaining, it gives a good overview of the German system.

The German style is horrible. Read the Metamorphosis by Kafka for a German perspective of their criminal justice system.

A 1915 book created during a time when Germany had a justice system that has since been changed significantly at least twice?

Also just from the plot summary I fail to see how it could even be relevant.

The German system's primary changes since Kafka's days were the introduction of US-style procedural protections. My point was that having the judge act as judge and jury in all cases is a worse option that having the option to use juries.

(Also: Like Camus' The Stranger, Kafka's Metamorphosis is an extended metaphor, so a plot summary won't help much.)

I disagree. I've served on 5 juries, and everyone had a fairly healthy questioning attitude towards both sides.

There were acquittals in 3/5, mostly on the basis of the prosecution doing a poor job of questioning their police, or the police playing dumb for reasons unknown. In one case it was hard to acquit as I think the defendant committed a serious crime, but the prosecution case sucked.

I'd love to see the differences between counties and type of defense representation and jury selection. How much of this is due to awful public defender practices or other abusive practices?

The public defender is key as jury selection is critical.

This is not really accurate - defendants have a right to a jury trial, a right that they can waive for the opportunity to have a bench trial (trying their case before a “professional judge”). The prosecution has zero say in whether or not a case is tried to jurors or a judge. The reason most defendants do not waive this right is because their odds of winning over/convincing a lay jury are much better than with a judge. At least according to any defense attorney I have talked with that is why.

For some reason every time the topic comes up, people come out of the woodwork talking about how bad the jury system is for defendants, while ignoring this exact point: the defendant has a right to a jury trial, but he can waive it and have a bench trial instead. In fact, the state would much rather you waive your right to a jury trial since they’re more expensive and much more of a procedural drain on the court system.

If you’re a defendant and you think you have a better shot with a jury, you choose a jury trial. If you think you have an unsympathetic but legally justified case, you pick a bench trial. Either way, it’s your choice, and I have difficulty understand how it could be inferior to a system where you’re deprived of the choice and subjected solely to the judgement of an unelected permanent bureaucracy.

I can assure people that years of legal dedication and training and the connections to get a judgeship does not by any means mean that someone is a good judge, and I’m becoming increasing convinced it has a pernicious impact on the legal system as a whole.

How the justice system is allowed to proceed with a farce in the way it is blows my mind. Like nobody's driving the bus, it's just a bunch of self-serving entities trying to get as much as they can for themselves. Prosecuting and defending seems like two sides of the same coin. There's no reason the roles of prosecutor, defender, and juror couldn't be assigned cases randomly from the same pool of lawyers. At least the perverse behavioral economics of the personal incentive game would be turned on its head.

I agree with some of your points but if you think judges are the answer I'd guess you haven't met many judges.

I agree. Juries are far better at understanding science than judges.

The only cases I ever lost were bench trials (before judges, no juries) where the judges refused to accept scientific challenges (backed by actual research) to the prosecution's pseudo-science evidence.

Yeah. Jury consultant here. Juries definitely have their problems but a lot of the scary bad things I've seen happen in trials have stemmed from bad rulings by the judge. I'm reminded of a case I had where the judge refused to DQ an expert economist who produced a damages model with a p value of 0.5 (yeah, not 0.05). Basically all the defendants had to settle because it had the judge's imprimatur and they wouldn't be able to convince the jurors it was bullshit. It's easy to blame juries when there are bad outcomes but a lot of the time their bad decisions are precipitated by bad rulings.