The disappearing trial: how social scientists can help save the jury from extinction

ABSTRACT

America’s founding fathers believed jury trials to be a critical component of an orderly democracy. Yet, fewer than 5% of America’s cases are decided by juries. We present an interdisciplinary review of empirical, legal, and historical literatures to highlight the significance of the disappearing trial. Without juries, direct participation in the justice system is severely limited, at a time when trust in governmental institutions is plummeting and highly publicized examples of systematic injustices are surging. Further, continued research on jury trials is critical for its practical implications and to address numerous fundamental psychological processes. The diminishment of the jury trial has been accompanied by a substantial increase in guilty pleas. The vast majority resulting from plea bargaining: a process that lacks the due process protections and transparency of trials. Furthermore, the increasing reliance on guilty pleas provides prosecutors with an immense amount of sentencing power—power once reserved for juries and judges. This dominant system of pleas poses a number of potential issues that are underscored throughout this paper. Ultimately, continued research on both adjudicative processes within the social sciences is critical to assuage the justice system to reverse its current trend toward the complete marginalization of the jury system.

KEYWORDS:

• juries
• guilty pleas
• adjudication
• decision making
• public policy

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Interestingly, some legal actors and researchers now try to claim that plea bargaining and guilty pleas have been around much longer. For instance, Judge Charles Clark of the United States Fifth Circuit Court of Appeals wrote: “Plea bargains have accompanied the whole history of this nation’s criminal jurisprudence” (Bryan v. United States, 1974, sec. 780).

2 Most empirical research on juries has, paradoxically, focused on individual jurors (Bornstein, 2017; Bornstein & Kleynhans, 2019). We elaborate briefly on this distinction below, in the section on “Why jury research matters.”

3 This computer simulation is customizable and publicly available; interested researchers can create an account on researcher.pleajustice.org.