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Remember jury trials, one of the hallmarks of the American justice system? You sure don't seem to see many of them around anymore. In 1962, for example, there were nearly 11,000 civil and criminal trials in federal courts, according to the ABA's "Litigation Online." By 1985, that number had risen to 12,529. But by 2002, federal courts heard only a little more than 8,000 cases -- a decline from the 60s, despite a massive increase in civil and criminal filings.
Today, it seems, almost everything is concluded before trial, whether by settlement or plea bargain, and juries may be becoming a thing of the past.
The Vanishing Trial
In 2004, the ABA's Section of Litigation launched The Vanishing Trial project to examine whether trials were really "an endangered species in our courts." The answer was, frankly, yes, they are. And if trials are a species in peril, so too are juries.
Today, a decade after the ABA's study, juries decide less than four percent of criminal cases and not even one percent of civil cases. The New York Times reported last summer, for example, that the Southern District of New York held only 50 criminal trials in 2015, down from the already low 106 trials in 2005. Judge J. Paul Oetken, a federal district court judge in Manhattan, told the Times that, in his five years on the bench, he'd only ever seen four criminal trials. Half of those were the same case; a repeat after an initial jury deadlock.
Instead of deciding cases in the open, more and more "justice" is being served behind closed doors, as prosecutors and criminal defendants negotiate plea deals or civil parties settle to avoid expensive litigation. In the criminal context, the Times reports, many scholars point to federal sentencing guidelines and mandatory minimums as the culprit. These rules, they say, "transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences." In the civil context, some point to the rise in mandatory arbitration and privatized ADR.
Jury trials are expensive, risky, slow. But they are also a valuable part of our court system. As Judge Lewis Kaplan says, the reduction of jury trials is "a loss, 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."
That decline is "hugely disappointing," according to SDNY's Judge Jed S. Rakoff. "A trial is the one place where the system really gets tested. Everything else is done behind closed doors."
Transparency isn't the only benefit of a trial, either. As the ABA noted more than a decade ago, "there are important and intangible social benefits that flow from the public trial."
Trials can be a catalyst for change. Trials can bring the light of public scrutiny into what would otherwise be the dark corners of our social landscape. Settlement and compromise can be viewed as just another step toward moral relativism, where there are only shades of grey. Trials are about right and wrong, good and bad, innocence and guilt.
Can this endangered species be revived before it's lost for good? Can juries ever be reintroduced to the wild?
Perhaps, but not without significant changes to how the system currently operates. After all, coming back from the verge of extinction isn't easy. Just look at the condor. Or a trial lawyer.