I have attached the needed chapters for this assignment below. Thank you
Assignment6B
Use the answer sheet to respond to the following questions. When completed, post your answer
sheet through the Assignments section. There is one correct answer per question, and each
answer is worth two points.
Example:
Which amendment protects against unreasonable searches and seizures?
a) First Amendment
b) Fourth Amendment
c) Fifth Amendment
d) Sixth Amendment
e) None of the above.
The correct answer is “B,” so you would enter “B” on the answer sheet for this assignment. One
point would be awarded for this question as the question was answered correctly.
1. According to the text,
a) about half of all judges attend and actively participate in plea bargain negotiations.
b) judges in some courts assume the plea-bargaining roles of absent attorneys (whether they be
prosecutors or defense attorneys.).
c) judges reject plea bargains on a fairly routine basis (approximately 25% of the time), which
demonstrates their ability to remain neutral.
d) All of the above.
e) None of the above.
2. The only flight risk predictor found to be 100% accurate is
a) prior criminal background.
b) ties to the community.
c) financial status.
d) seriousness of the crime alleged.
e) None of the above.
3. The prosecutor offers to allow the defendant to plead guilty to simple assault rather than
aggravated assault. This is an example of ________ bargaining.
a) hard
b) sentence
c) count
d) charge
e) None of the above
4. Police are known as the gatekeepers of the criminal justice system because
a) they define crimes and their potential penalties.
b) their actions determine who becomes involved with the criminal justice system.
c) they are the only source to whom crimes can be reported and have sole authority to conduct
criminal investigations.
d) All of the above.
e) None of the above.
5. Leading questions
a) are allowed only on direct examination.
b) are allowed only on cross-examination.
c) are allowed during both direct examination and cross-examination.
d) prohibited during all stages of the
trial.
e) None of the above.
6. Under early common law bail systems,
a) the strength of evidence against a defendant was considered in the bail decision.
b) those who served as surety for defendants could be substantially fined or even executed if
defendants did not appear for trial.
c) defendants charged with serious crimes such as murder, arson, and treason were not eligible
for bail.
d) All of the above.
e) None of the above.
7. Plea bargaining
a) allows key courtroom players to work cooperatively towards achieving their individual goals.
b) promotes the adversarial nature of the courtroom process.
c) tends to create dissention among competing attorneys.
d) reduces the actual conviction rate of prosecutors.
e) None of the above.
8. Police discretion
a) is strictly limited to only life-threatening or other emergency situations.
b) protects officers from civil liability lawsuits.
c) is necessitated in part by limited resources and public opposition to total enforcement of laws.
d) All of the above.
e) None of the above.
9. Alaska’s ban of plea bargaining resulted in
a) a significant drop in the number of guilty pleas.
b) more severe sentences for violent offenders.
c) no significant change in the amount of time from arrest to the end of trial.
d) All of the above.
e) None of the above.
10. According to research on police discretion,
a) officers with more years of service are more likely to use discretion when handling driving
offenses.
b) police enforcement of the law is consistent regardless of community norms and values.
c) officers continue to use discretion despite mandatory arrest policies.
d) All of the above.
e) None of the above.
11. Scientific jury selection
a) is used relatively rarely in criminal trials.
b) relies on the hunches and experiences of attorneys.
c) has been conclusively proven to be superior to the traditional jury selection methods.
d) All of the above.
e) None of the above.
12. The judge sets bail at $10,000 for Francis, who is charged with armed robbery. Francis
appears for all scheduled court dates, is convicted, and ordered to pay $7,500 restitution to the
victim of the armed robbery. Which
of the following is true?
a) The victim is paid $7,500 from Francis’s bail, and Francis receives the remaining $2,500.
b) The victim is paid $7,500 from Francis’s bail, and the remaining $2,500 is retained by the
court to cover court costs.
c) Francis loses the $10,000 paid for bail due to being
convicted.
d) The $10,000 bail is returned to Francis, despite the conviction and order of restitution.
e) None of the above.
13. The defense attorney fears his client cannot receive a fair trial due to excessive media
coverage of the case and would like to request the trial be moved to a different jurisdiction. This
request should be made
a) as a pre-trial motion.
b) during the discovery process.
c) as part of ongoing negotiations with the prosecution.
d) on the first day of the trial.
e) None of the above.
14. Defendants A and B are charged as co-defendants in the same crime. Defendant A has
owned a home in the community for seven years, has an annual salary of $50,000, and has three
children attending the local school system. Defendant B was visiting Defendant A from another
state and is currently unemployed. Which of the following is most likely true?
a) Defendant A’s bail will be higher because he has more financial assets to pay bail.
b) Defendant A’s bail will be lower because of his ties to the community.
c) Defendant A’s bail will be lower because he has a family to support.
d) Bail for both defendants will be the same as the crime is the same.
e) None of the above.
15. During a sidebar,
a) the judge explains critical legal information to jurors.
b) the judge, prosecutor, and attorney meet in the judge’s chambers to discuss the
case.
c) jurors can ask the judge any questions they may have about evidence presented during the
trial.
d) the judge and attorneys meet at the judge’s bench to discuss an issue outside the hearing of the
jury.
e) None of the above.
16. Which of the following is true?
a) About half of defendants charged with felonies have bail set at $5,000 or less.
b) Only about 25% of defendants charged with violent crimes receive bails in excess of $25,000.
c) Wealthy defendants may receive higher bails to discourage bail forfeiture.
d) All of the above are true.
e) None of the above are true.
17. Defendants charged with ______ offenses have a constitutional right to bail.
a) traffic
b) misdemeanor
c) felonies
d) All of the above.
e) None of the above.
18. Preventative detention
a) has been ruled unconstitutional by the U.S. Supreme Court.
b) can be used only in cases involving violent offenses.
c) allows courts to hold defendants without setting bail.
d) All of the above.
e) None of the above.
19. James is arrested for reckless driving and taken to the police station for processing. In most
jurisdictions,
a) the police determine if bail should be set and, if so, what the amount of bail should be.
b) James must remain in jail until a judge is available to set bail.
c) James can pay a pre-determined bail amount set by the court.
d) James must be released without bail because he has not yet been proven guilty.
e) None of the above.
20. Police discretion
a) allows abuse of power and police misconduct to occur.
b) ensures equal treatment of all individuals.
c) has little impact on perceived legitimacy of the criminal justice system.
d) All of the above.
e) None of the above.
21. Stephanie posted a $35,000 bond for Lisa, and Lisa fails to appear at her court date. Which
of the following is true?
a) Stephanie’s only recourse is to file a civil suit against Lisa for the amount of the bond.
b) Stephanie can attempt to track down Lisa but can do so only with the assistance of law
enforcement.
c) Stephanie is responsible for the full amount of the $35,000 bond.
d) All of the above.
e) None of the above.
22. According to at least one study, case attrition most often occurs
a) in the plea bargaining process.
b) between arrest and the filing of charges.
c) at the request of victims who no longer wish to pursue charges.
d) after a preliminary hearing and determination of insufficient evidence.
e) None of the above.
23. Initially, bail was designed to
a) release defendants from incarceration prior to trial so the government would not be required
to provide care.
b) detain defendants until they agreed to cooperate with police and prosecutors.
c) ensure those accused of crimes received some type of punishment.
d) All of the above.
e) None of the above.
24. Which of the following is true, according to the funnel model of the criminal justice system?
a) To ensure all cases involving arrest are eventually prosecuted, the criminal justice system
creates a certain backlog of cases at each level, giving the courts sufficient time to hear each
case.
b) Cases at each section of the funnel are similar in nature and should be handled in a similar
manner.
c) Only the most serious cases are processed through the criminal justice system, while less
serious cases are removed through attrition.
d) All of the above.
e) None of the above.
25. Defendant A is sentenced to six years in prison, Defendant B is sentenced to two three-year
sentences to run consecutive, and Defendant C is sentenced to two six-year sentences to run
concurrently. Which defendant must serve the most time in prison?
a) Defendant A
b) Defendant B
c) Defendant C
d) Defendants B and C must both serve more time than Defendant A.
e) All defendants must serve the same amount of time in prison.
26. At the bail hearing, the defendant’s pastor requests the defendant be released to his custody.
He tells the court he has been working closely with the defendant over the past few months to
resolve a number of personal issues and can guarantee the defendant will appear at all court
appointments. The judge grants the pastor’s request, which is a form of release known as
a) release on recognizance.
b) third-party custody.
c) surety bond.
d) guardianship release.
e) None of the above.
27. At the bail hearing, the prosecutor requests the defendant, who is charged with three counts
of sexual assault, be held in preventative detention. The judge
a) cannot grant the request as the defendant is not charged with a capital offense (punishable by
death).
b) can grant the request only if the prosecution can prove the defendant is a flight risk.
c) can grant the request if the defendant is deemed a threat to others in the community.
d) can grant the request if there is overwhelming evidence of guilt.
e) None of the above.
28. Bail sureties
a) have unlimited authority to track down bail skippers.
b) are bound by the same constitutional rules as law enforcement officers.
c) can be held liable for harm caused by their recovery efforts.
d) All of the above.
e) None of the above.
29. The U.S. Constitution
a) is silent on the issue of bail.
b) requires bail be set for all misdemeanors.
c) sets maximum bail amounts for each type of offense (misdemeanor and felony).
d) prohibits excessive bail.
e) None of the above.
30. Which of the following is an example of discretion?
a) A police officer observes a juvenile spray painting a roadside sign. He lectures the juvenile
and releases him to his parents without filing charges.
b) After being informed that a domestic violence victim refuses to testify, the prosecutor
continues to prosecute the case using other forms of evidence, as required by the agency’s “no
drop” policy.
c) Following mandatory reporting requirements, a probation officer petitions the court to revoke
the probation of a client who tested positive for drugs.
d) All of the above are examples of discretion.
e) None of the above are examples of discretion.
31. Jason posts a $5,000 fully secured bond for a theft from a local business. If he does not
appear for trial,
a) he loses the entire $5,000 bond but no longer has to stand trial.
b) he loses the entire $5,000 bond and must still stand trial.
c) the $5,000 is held only until he can be found or appears for trial.
d) the $5,000 can be used to reimburse the business for its loss in the crime.
e) None of the above.
32. At a bail hearing, the prosecution requests a $12,000 fully secured bond based on the nature
of the offense and the defendant’s lack of ties to the community. The defense requests a $5,000
percentage bond, indicating the defendant has no prior criminal history and is employed full-
time. Based on research, the judge
a) is more likely to side with the prosecution.
b) is more likely to side with the defense.
c) is more likely to compromise with the two requests.
d) is no more likely to favor either requests.
e) None of the above.
33. According to research cited in the text, defendants released on bail
a) are less likely to waive their right to trial and plead guilty.
b) generally receive harsher sentences than those not released on bail, perhaps due to time
served.
c) are better able to assist in preparation of their defense.
d) All of the above.
e) None of the above.
34. Which of the following type of bail does not require forfeiture of bond if defendants fail to
appear in court?
a) Deposit bail
b) Unsecured bail
c) surety bail
d) All of the above require forfeiture for non-appearance.
e) None of the above require forfeiture for non-appearance.
35. In terms of jury selection, venire
a) means to speak the truth.
b) refers to final group of jurors selected for a trial.
c) refers to the jury panel.
d) is the process of polling jurors following a verdict.
e) None of the above.
36. Plea bargains occur in approximately ____% of all criminal cases.
a) 35
b) 50
c) 75
d) 90
e) None of the above.
37. The least common type of plea bargaining is
a) sentence bargaining.
b) count bargaining.
c) charge bargaining.
d) felonious bargaining.
e) None of the above.
38. In early American courts (pre-Civil War), which of the following cases was most likely to be
plea bargained?
a) prostitution
b) minor theft
c) wife battering
d) All of the above were likely to be plea bargained.
e) None of the above were likely to be plea bargained.
39. Jury nullification
a) occurs when the judge refuses to accept the verdict of the jury.
b) occurs when the jury returns a verdict not consistent with the evidence presented at trial.
c) is a leading cause of mistrials.
d) occurs when the judge dismisses jurors due to misconduct.
e) None of the above.
40. According to the text,
a) the majority of defendants charged with murder are granted some type of bail.
b) only one in ten defendants are
denied bail.
c) 94% of those charged with a crime are ultimately given bail.
d) All of the above.
e) None of the above.
41. During opening statements, attorneys
a) should refer to jurors by name to establish a personal bond.
b) should call into question the credibility of the opposing attorney and witnesses to minimize
the impact of their testimony.
c) should develop the framework of the case and present a theory of what happened.
d) All of the above.
e) None of the above.
42. The prosecutor tells the defendant that, if he pleads guilty, he will ask the judge to reduce the
term of imprisonment by half. This is an example of a(n) __________ plea bargain.
a) explicit
b) implicit
c) promissory
d) reductive
e) None of the above.
43. The defendant appears before the judge and states he wishes to enter into the plea bargain
offered by the prosecution. The judge
a) must accept the plea bargain if the prosecution and defense both agree to the terms.
b) must be satisfied that the defendant is indeed guilty of the charge(s) to which he is pleading.
c) must ensure the defendant’s actions are voluntary.
d) All of the above.
e) None of the above.
44. At the bail hearing, the prosecution requests that Frankie be given a conditional release,
requiring that he wear an electronic monitoring device, refrain from alcohol use, and have no
contact with the victim. The judge
a) can set these conditions as long as they are reasonably related to protecting the community or
ensuring the defendant appears for trial.
b) can set only conditions that could be incorporated as part of the defendant’s sentence if
convicted.
c) can set any conditions he chooses as the defendant has the option to decline them.
d) can set a high bail amount but has no authority to establish any special conditions as the
defendant has not been found guilty.
e) None of the above.
45. Surety bail
a) requires defendants to post 100% of the bail to ensure their appearance.
b) is the most common type of bail.
c) generally involves use of a bail bondsmen, who charges a nonrefundable fee.
d) All of the above.
e) None of the above.
46. Which of the following is true of plea bargains?
a) They are usually initiated by prosecutors.
b) Prosecutors place more emphasis on appropriate sentences than obtaining convictions.
c) Once agreement has been reached, the prosecutor, as the minister of justice, must “sell’ the
deal to the defendant..
d) All of the above.
e) None of the above.
47. Once bail has been set, it can be revoked
a) only if the defendant commits another crime.
b) only if the defendant fails to appear for a scheduled trial.
c) only if the defendant attempts to leave the court’s jurisdiction.
d) for any reason, if the surety no longer wishes to be responsible for the bond.
e) None of the above.
48. During closing arguments,
a) attorneys are not allowed to introduce new evidence.
b) statements made by the prosecution are immune from appeal.
c) attorneys can invoke stereotypes about witnesses, victims, and the defendant as long as they
do not contradict evidence submitted during trial.
d) All of the above.
e) None of the above.
49. Which of the following is not an advantage of plea bargains, according to the U.S. Supreme
Court?
a) They lead to prompt disposition of cases.
b) They enhance the rehabilitative prospects of defendants when they are imprisoned.
c) They reduce negative consequences of pre-trial release, as well as pre-trial detention.
d) All of the above are advantages identified by the Supreme Court.
e) None of the above are advantages identified by the Supreme Court.
50. The Manhattan Bail Project
a) led to repeal of the Bail Reform Act of 1966, which limited access to bail for indigent
defendants.
b) found that defendants released on bail were substantially less likely to be convicted than those
denied bail.
c) found that indigent defendants were less likely to appear for trial than wealthier defendants.
d) All of the above.
e) None of the above.
51. Jury deliberations
a) occur in the presence of the bailiff to ensure compliance with jury instructions.
b) occur throughout the trial process during breaks from the courtroom.
c) often involve compromise, bargaining, and even coercion to reach a verdict.
d) All of the above.
e) None of the above.
52. Bounty hunters
a) are heavily regulated by state and federal law.
b) must be licensed in just two states.
c) are exempt from most laws while tracking bail skippers.
d) All of the above.
e) None of the above.
53. Which of the following cases is most likely to be plea bargained by the prosecutor?
a) The prosecution has videotaped footage of the defendant committing the crime.
b) The case involves a minor offense but has drawn widespread public attention.
c) The prosecution’s evidence consists solely of one eyewitness.
d) All of the above are equally likely to be plea bargained.
e) None of the above are likely to be plea bargained.
54. A jury of one’s peers means jurors
a) are from the same socioeconomic group as the defendant.
b) share at least one common characteristic with the defendant (such as race or sex).
c) are from the same community as the defendant.
d) All of the above meet the requirements to be a jury of one’s peers.
e) None of the above.
55. Release on recognizance
a) is the most common form of pre-trial release.
b) is a form of bail.
c) requires use of collateral.
d) All of the above.
e) None of the above.
56. Defense attorneys hope plea bargains result in
a) an acquittal for the defendant.
b) a reduced penalty for the defendant.
c) improved relations with other key courtroom players.
d) All of the above.
e) None of the above.
57. According to Moley, plea bargains
a) are an effective means to dispose of cases and should be encouraged.
b) allow courts to circumvent mandatory sentences.
c) is consistent with the basic philosophy of justice.
d) All of the above.
e) None of the above.
58. During jury selection,
a) attorneys have a limited number of challenges for cause.
b) peremptory challenges can be used only if an attorney can demonstrate the juror cannot be
impartial.
c) attorneys attempt to identify jurors sympathetic to their side of the case.
d) All of the above.
e) None of the above.
59. _________ is/are considered the heart and soul of a criminal trial.
a) Cross-examination
b) Opening statements
c) Case-in-chief
d) Direct examination
e) None of the above.
60. According to the wedding cake model of the criminal justice system,
a) the number of crimes processed diminishes at each step of the legal system.
b) misdemeanors receive greater attention from the courts.
c) lower layers of the cake experience higher levels of attrition.
d) All of the above.
e) None of the above.
61. Which of the following is true of police?
a) Most of their contact s with citizens come from citizens reporting crimes, as either victims or
witnesses.
b) Most of their time is spent enforcing criminal and traffic laws.
c) Line-level officers (those at the working level, such as patrol officers) , rather than high-level
officials, make some of the most critical decisions in the criminal justice system.
d) All of the above.
e) None of the above.
62. Which of the following is not a piece of advice given by jurors to attorneys?
a) Object often to demonstrate legal knowledge and assertiveness.
b) Repeat evidence and key points often to ensure jurors understand.
c) Be dramatic and theatrical to enhance presentation to the jury.
d) All of the above are advice given by jurors.
e) None of the above are advice given by jurors.
The following questions are optional. You will not be penalized if you choose to not answer
these. These questions serve as extra credit, but your grade cannot exceed 125 points.
63. During a murder trial, evidence is presented that the defendant planned the crime for more
than a month, even making arrangements to purchase a special silencer for the murder weapon.
Evidence is also presented that the defendant was abused as a child, causing delayed mental
development. Which of the following is true?
a) The defendant’s actions in planning the murder is an aggravating factor.
b) The defendant’s delayed mental development is an aggravating factor.
c) The defendant’s use of a silencer is a mitigating factor.
d) All of the above are true.
e) None of the above are true.
64. The district attorney reports a 33% attrition rate of cases within the county courts. This
means 33% of all cases
a) result in conviction.
b) are removed from the system before conviction.
c) are resolved through plea bargains or other forms of arbitration.
d) involve defendants who have a previous record with the courts.
e) None of the above.
65. Which of the following is true of mistrials?
a) About 10% of all cases end in a mistrial due to a hung jury.
b) Prosecutors cannot re-prosecute a case that ends in a mistrial.
c) A mistrial can occur due to the death of one of the attorneys or juror misconduct.
d) All of the above are true.
e) None of the above are true.
P A R T I I I
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Step 9
Some Cases Don’t
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We’ve just seen how some of the participants in the criminal justice drama play key
roles in the court system. But as this chapter will demonstrate, some of the partici-
pants may not get the opportunity to play their roles, as some cases never make it to
the courtroom. As one team of researchers studying the attrition of felony cases
noted, “half or more of all arrests for serious crimes end without convictions”
(Feeney, Dill, and Weir, 1983). In addition, a certain percentage of felony charges
are reduced to misdemeanors, depending on the nature of the case and local prose-
cutorial policies.
Why does attrition occur? In this chapter we will look at what activities do—
or do not—become grist for the criminal justice process. Some actions, for exam-
ple, are not legally defined as crimes, and therefore they cannot result in arrest until
and unless the legislature acts to change this. After reading this chapter, you should
have a good understanding of some of the reasons why some cases never enter the
criminal justice process, or are weeded out of the process before reaching the
courtroom. In particular, we will take a close look at the key role that the police
play in determining which cases and suspects make it to court.
MODELS OF THE CRIMINAL JUSTICE PROCESS:
FUNNELS, CAKES, AND NETS
What do you think of when you think of the criminal justice process? In order to
help you visualize it, there are a variety of analogies available. One common model
of the criminal justice process likens it to a funnel: wide at the top, tapering down
to a narrow end. The funnel model illustrates the fact that the number of crimes that
are processed through the system decreases at each step due to case attrition (see
Figure 9.1). For example, the criminal process begins with a crime being commit-
ted. But as we learned earlier, many crimes are not reported by victims for a variety
of reasons. Of those reported, some are processed further through the legal system,
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but at each stage of the process fewer and fewer cases are handled by the system
because cases are shunted out of the system at a variety of points along the way.
Another model for conceptualizing how cases are processed in the criminal
justice system uses the “wedding cake” analogy (see Figure 9.2) (Friedman and
Percival, 1981; Gottfredson and Gottfredson, 1988). The wedding cake model
illustrates how cases are sorted into layers depending upon their seriousness, with
less serious cases forming the bottom layer of the cake and more serious cases
forming the smaller layers on top. At the very top of the cake, the smallest layer
represents famous (or rather, infamous) cases that attract a lot of publicity and,
unfortunately, often contribute to public misinformation about the criminal justice
process. Such notorious cases are not representative of the vast majority of cases in
the criminal justice system.
The layers of the “criminal justice wedding cake” illustrate two important
points about case processing: First, cases at different layers are accorded quite dif-
ferent treatment, in keeping with the differences in case seriousness. Thus, misde-
meanors at the bottom layer of the cake are handled quite differently than serious
felonies in the third layer. Second, within each layer, cases are similar and there-
fore should be handled consistently (Walker, 2001). Under the wedding cake
model we expect minor cases to receive less attention, and thus there is greater
attrition at this level, represented by the bottom layer of the cake. More serious
offenses, however, are more likely to be pursued through all stages of the criminal
justice process.
Another model of the criminal justice process that can help us understand why
some cases don’t get to court requires us to think of the criminal justice system as a
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Crimes Committed
Convictions
FIGURE 9.1 The funnel model of the criminal justice process.
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net. The net has characteristics that allow some offenders to exit the net at certain
points, while others struggle fruitlessly to get free but merely further entangle them-
selves. For example, police may decide to let an individual who has committed an
offense remain in circulation so that the person can serve as an informant and pro-
vide information on the “bigger fish” of primary interest to the police. Or, as we will
see when we look at plea bargaining in Step 11, defendants with little information to
trade with the prosecutor may get less attractive plea deals than their accomplices in
crime who have more knowledge with which to bargain. In these situations, the
medium-sized “fish” may swim out of the net faster than the littlest fish, who get
stuck with longer sentences. Some of the exit points from the net are built in so that
some cases are routed out of the net. Other exits represent rips and tears in the net,
places where it has frayed and has yet to be repaired adequately (see Figure 9.3).
THE WINNOWING PROCESS
The common theme illustrated by the funnel, cake, and net models of the criminal
justice process is that at each stage in the process cases are winnowed out (i.e.,
sifted out). These models illustrate case attrition graphically, which raises two
important questions: (1) How does this happen at each stage or point in the
process? (2) Why does this happen?
These questions require us to step back and take a look at the key decision
points in the criminal justice process, and to examine the critical role that decision-
making discretion plays in the criminal justice system. Discretion is the power to
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The Winnowing Process 245
Misdemeanors
Notorious cases
Serious felonies
Lesser felonies
FIGURE 9.2 The wedding cake model of the criminal justice process. SOURCE: Adapted from
Walker, 2001.
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make choices: to exercise one’s decision-making abilities to choose between alter-
natives. The decision points in the criminal justice process are places where deci-
sions are made that determine whether and how an individual’s actions are defined
as a crime and whether a criminal case is pursued. We must therefore look at the
decisions made even before the “gatekeepers” of the criminal justice system—
the police—are involved. At each of these decision-making stages, the choices of
the actors in the legal system determine which cases make it to court and which
cases do not. At each of these stages, criminal justice actors must exercise their dis-
cretion in order to reach a decision.
What are these “decision points,” and what are the issues they raise for legal
decision-makers? Let’s take a look (see Figure 9.4).
CASE ATTRITION AND KEY POINTS IN THE
CRIMINAL JUSTICE PROCESS
The criminal justice process has key stages, points in the process of funneling
cases through the system where case attrition can occur. Let’s take a look at this
process and how case attrition occurs at each point.
1. What determines whether an action is defined as a crime or not? Legislators,
voters, and courts all serve as sources of decisions that determine whether or not it
is a crime for a husband to beat his wife, for someone to steal another person’s
identity, or to surreptitiously take intimate photos of people’s bodies in public, or
to fail to provide safety training for workers in hazardous industrial positions, for
example.1 As our discussion in Step 8 concerning differential treatment of white-
collar and street crimes demonstrated, white-collar offenses are usually treated as
violations of civil law rather than criminal law. In addition, prosecutorial policies
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246 Some Cases Don’t Make It to Court
FIGURE 9.3 The net model of the criminal justice process.
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Case Attrition and Key Points in the Criminal Justice Process 247
Legislators
Congress and state legislatures are responsible for enacting statutes
defining crimes and their potential penalties. The substance and format
of federal and state public policies on crime and criminal justice reflect
key decisions made at different points in the legislative process.
Police
Police departments create department policies on police actions.
Individual officers make many decisions, such as whether, and whom,
to stop, search, arrest, or warn; whether to initiate pursuit of a suspect,
charges pursuant to an arrest, and other decisions.
Victims
Decide whether to report the crime, and whether to participate in the
criminal justice process to the extent there are opportunities for
participation.
Defense Counsel
Responsible for critical decisions such as what to advise the client, how
best to handle the case, and how to locate potentially exculpatory
evidence through the legal process of discovery, among other key
decisions.
Prosecution and Defense Counsel
Both make key decisions about possible plea bargains, jury selection in
the event of a trial, and how best to assemble the evidence and the
witnesses in a case and challenge the opposition’s account of events.
Judges
Responsible for many critical decisions, such as those associated with
the preliminary hearing, the question of bail, the admissibility of
evidence, the conduct of the trial (for example, ruling on objections
presented by counsel), and the sentencing process.
Juries
As the triers of fact, juries are responsible for assessing whether the
prosecution has proved the government’s case beyond a reasonable
doubt. In most death-penalty cases, the jurors determine whether a
defendant found guilty of a capital crime should receive a life sentence
or the death penalty.
Prosecutors
Responsible for critical decisions about cases, such as the sufficiency
of the evidence, the type of charges to be filed, winnability,
considerations of resources, the interests of justice, and other
important decisions.
FIGURE 9.4 Decision-making in the criminal justice process
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may not emphasize aggressive pursuit of white-collar offenses, whether from lack
of resources, perceived public apathy, or other reasons.
Of course, if a particular action is not defined as a violation of criminal law,
then that action, no matter how ethically objectionable it might be, will not become
part of a criminal court’s caseload (recall David Cash, who failed to intervene on
behalf of Sherrice Iverson, the little girl killed in a casino restroom by Cash’s
friend, Jeremy Strohmeyer?). Thus, you can see how decisions about how crimes
are defined directly contribute to the “case winnowing” process.
2. When a crime is committed, is it detected? As we saw earlier in this book,
there is a large “dark figure” of unreported crime, and many reasons for the lack of
reporting. Victims may be reluctant to report crimes due to fear, shame, a desire for
privacy, or other reasons. In some instances, victims of crime may be unaware of
their victimization and therefore unable to report it, as for example with people
who have been subjected to illegal environmental pollution from companies in
their neighborhood, or people whose identities are stolen without their knowledge,
or people who do not realize that violence perpetrated against them by their inti-
mates constitutes a crime (e.g., marital rape).
In other cases, victims are well aware of their aggressor’s crimes, but are fear-
ful of the consequences of reporting them (e.g., victims of gang violence fearing
retaliation; victims of domestic violence fearing retaliation or fearing loss of fam-
ily income if the abuser is incarcerated). The use of “date-rape drugs,” such as
Rohypnol, to render sexual assault victims helpless can sometimes cause amnesia
effects that interfere with the victim’s ability to determine exactly what happened,
thus making reporting less likely in some cases (Fitzgerald and Riley, 2000). Some
victims are less able than others to report crimes committed against them, such as
children, the mentally impaired, or people who are institutionalized (e.g., residents
of nursing homes, inmates in correctional facilities). Depending on the context, the
impediments to reporting will vary. Hence, the inability to report victimization, or
the decision not to report, is a significant reason why some crimes do not become
part of the criminal justice system caseload.
3. When a crime is discovered, will it become a criminal case? The vast major-
ity of crimes known to police are reported by citizens rather than initially discov-
ered by police. Police must then determine whether or not a crime has actually
been committed, and if so, who the culprit is (although this chapter assumes that
the police complete criminal investigations, in some jurisdictions investigators
with the prosecutor’s office may complete most of an investigation). The discovery
of an apparent crime does not necessarily mean that a criminal case will result, or
that a criminal case will make it all the way through the courts to conviction or
acquittal. There are many reasons for this. Some crimes, such as child abuse, may
be reported to child welfare agencies rather than the police. Police records there-
fore do not accurately depict the extent and nature of child abuse, although the
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implementation of new reporting methods will help improve the reporting situation
in future (Finkelhor and Ormrod, 2001).
Perhaps the action that was discovered and reported as a crime is not actually
a violation of criminal law after all. Or, there may be insufficient evidence that a
crime has actually occurred. For example, worried relatives may contact police to
report that a family member is missing and urge police to investigate. However, if
the person reported missing is a competent adult, and there is no indication of foul
play, the police must wait a certain period of time after the disappearance occurred
before investigating. The reason is that it is not crime for an adult to voluntarily
decide to “disappear,” unless he or she is legally obligated to stay put (e.g., proba-
tioners), and every year many families discover that this is just what their loved
ones did. Of course, if a juvenile decides to “run away,” this is a status offense
(i.e., an action that is an offense when committed by a minor). The police call
reports of crimes that cannot be sufficiently substantiated “unfounded” reports.
There are also many instances where behavior that is technically a crime is
diverted from the criminal justice system by police decisions not to pursue the mat-
ter. There are a variety of reasons for this, which we will discuss in detail shortly.
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Case Attrition and Key Points in the Criminal Justice Process 249
Many individuals other than those directly involved with the courts may screen cases before they
reach the courts. Victims may not detect or report offenses. Police officers may exercise discretion
in selecting which cases result in arrest. Many of the cases law enforcement officers screen out of
the courts’ docket involve minor offenses that are not supported by evidence, or offenses that an
officer feels do not warrant further involvement in the justice system (for example, issuing warnings
to disorderly teenagers). Situations like the one shown in this photograph, where an officer obtains
information from a victim of a crime, can result in many outcomes. SOURCE: Courtesy of Jon’a
Meyer.
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4. When a crime is substantiated by police investigation and reported to the
prosecutor, will it become a criminal case? Here is where the quantity and quality
of the evidence and the prosecutor’s discretion are critically important. As you’ll
recall from Step 5, prosecutors must use their discretion to decide which cases to
pursue. In some cases, a crime has clearly been committed but the evidence is insuf-
ficient to permit identification of the culprit, so the case remains in the filing cabinet,
awaiting further developments. In other cases, the victim may be unwilling to press
charges; this has been a very common reason for prosecutorial failure to pursue
charges in domestic violence cases. In recent years, however, many prosecutors’
offices have instituted “no drop” policies in domestic violence cases. In jurisdic-
tions with such policies, prosecutors will pursue charges based on other evidence
even where the victim refuses to press charges (or agrees to cooperate by signing a
complaint, but later asks that charges be dropped).
A certain percentage of cases reflect arrests of the wrong person, where
despite police investigation, the person apprehended is not the actual culprit. As
you’ll recall from Step 5, in some instances prosecutors decide that the case is not
“winnable,” or that in the interests of justice, the case should not be pursued. At the
federal level, for example, U.S. attorneys may decline to prosecute cases not only
for insufficient evidence, but for reasons such as lack of resources, lack of criminal
intent, alternative resolution of the matter, or the fact that the nature of the case
makes it of “minimal federal interest” (U.S. Department of Justice, 2000, p. 24).
Thus, for a variety of reasons, reflecting both case factors and organizational fac-
tors (e.g., resource limitations), prosecutors decline to file charges in a certain per-
centage of cases, or request dismissal of cases that haven’t “panned out” after
further investigation.
Prosecutorial policies on case screening, case filing, and case priorities are
therefore a central source of case attrition. However, it is important to keep in mind
that case attrition in and of itself is not necessarily a problem; whether it is prob-
lematic depends upon what kinds of cases fail to make it through the criminal
process, and the reasons why they are weeded out. Cases where there is insufficient
evidence that a crime has occurred, or insufficient evidence that the suspect
arrested is the actual culprit, are appropriately screened out by prosecutors. In con-
trast, prosecutorial resources may be focused on identifying and pursuing repeat
violent offenders. However, these are often difficult goals to achieve, for example,
because it is often hard to accurately pinpoint the most serious repeat offenders due
to lack of information and resources (Chaiken and Chaiken, 2000). The words of
Feeney, Dill, and Weir, (1983) discussing attrition, illustrate this concept well:
A high prosecutorial conviction rate may be a sign of excellent prosecutorial performance or
of overly conservative charging policies; the best test is not the rate itself but the kind of
charges not filed. A high attrition rate may be a sign of lax performance by either the police
or the prosecutor, illegal or highly aggressive police work, or a very careful police command
and control system that keeps unusually detailed records of police arrest activity.
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5. Suppose the prosecutor pursues a case. As we saw in Step 3, at the prelimi-
nary hearing the prosecutor must present sufficient evidence that there is probable
cause to believe that the accused committed the alleged crimes in order for a judge
to order the case bound over for trial. If the prosecutor does not meet this burden of
proof, the judge will dismiss the case. In instances where the matter has gone to a
grand jury, the prosecutor will present evidence to grand jury members and ask
them to return an indictment. As you’ll recall from Step 5, grand juries are fre-
quently criticized as being “rubber stamps” for prosecutors, but in some cases
grand juries have refused to return an indictment. This is another avenue, then,
through which cases may not make it to court.
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Case Attrition and Key Points in the Criminal Justice Process 251
BOX 9.1
Resurrected Cases: Cases That (Almost) Didn’t Make It to Court
In 1981, Sylvia Edgren, a mother of two, was kidnapped, sexually assaulted, and murdered in
Monterey, California. Police collected physical evidence and stored it, but at the time there were
few leads in the case. DNA analysis, the scientific technology that would help pinpoint the iden-
tity of criminal perpetrators, was in its infancy, so the case remained open in police files. In the
two decades since Ms. Edgren’s murder, developments in DNA testing have begun to revolu-
tionize the criminal justice process. The newspapers report stories almost daily of DNA analysis
being used to identify criminal suspects, and to exonerate those mistakenly convicted of a
crime. In the Edgren case, Monterey police took advantage of a new Justice Department DNA
databank of known felons to see if the evidence in the case matched the samples from the indi-
viduals in the databank. In January 2001, police arrested suspect Michael Adams after the data-
base reported a match between the Edgren case evidence and Adams’ DNA profile, which had
been filed in the databank after a 1987 conviction (Goodyear and Hallissy, 2001).
The Justice Department databank has produced several other “cold hits” that reveal a pos-
sible match between DNA from case evidence and DNA profiles in the databank. One such case
is that of David McIntosh, who was about to be released from state prison after serving his sen-
tence in one case when the databank identified him as the suspect of interest in the 1984 murder
of thirteen-year-old Heidi Marie Fredette. McIntosh has been charged with capital murder in
her death, and the case is proceeding at this writing (Goodyear and Hallissy, 2001).
In the midst of this technological revolution, however, it is important to remember that
DNA evidence is not infallible; if not collected and preserved properly, it may become degraded
or contaminated. And DNA evidence, like fingerprint evidence, is not proof per se that a suspect
committed a crime: it is relevant to the question of whether or not the suspect was present at the
crime scene, but it does not reveal when or why the suspect was there (National Institute of Jus-
tice, 1999).
Source: Copyright © The San Francisco Chronicle. Reprinted with permission.
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POLICE: THE “GATEKEEPERS” OF THE
CRIMINAL JUSTICE SYSTEM
The most publicly visible representatives of our legal system, and arguably of our
government as a whole, are the police. Police officers are front and center in the
frequency and range of their contacts with members of the public; in 1999, for
example, about 21 percent of U.S. residents had at least one contact with the
police. About half of these contacts were traffic stops, and another 19 percent of
police-public contacts were for the purpose of reporting a crime (Bureau of Justice
Statistics, 2001, p. 1). Police play a critical role in the legal process because their
actions influence those of all other legal actors in the court system. Police are the
“gatekeepers” of the criminal justice system in the sense that their decisions deter-
mine who “gets in” to the system and who does not, and police evidence-gathering
activities form the basic foundation for a criminal case. Thus, the decisions that
police officers make determine which cases go into the “funnel” or the layers of the
“cake” (or are caught in the criminal justice “net”) and shape the “raw material”
that the prosecutor has to work with. Unlike many bureaucracies, in the criminal
justice system some of the most critical discretionary decisions are made by line-
level officers in the bureaucracy rather than higher-level officials (Tonry, 1993,
p. xiv). Given their importance, let’s look at the role police play in more detail.
There are social, legal, and ethical dimensions to police conduct that are
unique to the occupation of law enforcement, although the ethical dilemmas inher-
ent in police work share similarities with other occupations (e.g., medicine and
law). Police work is unique in that it is characterized by the twin themes of author-
ity and danger (Skolnick, 1966). Police are the only members of society who are
legitimately authorized to use force, including deadly force, to respond to conflicts
in both the public and private realms. Therefore, police have unparalleled author-
ity, which carries with it commensurate responsibilities to exercise such life-or-
death power in a lawful manner. The concept of danger is also central to policing,
because although most police work does not involve actively chasing dangerous
criminals (contrary to popular depictions on television cop dramas), the potential
for an officer to encounter a dangerous situation characterizes much police work.
Police spend most of their time maintaining order and providing service to
community members, and the least amount of time performing law enforcement
activities (Richardson, 1974). However, these three categories of police activity are
highly interrelated, and effective police work depends upon all three types of activi-
ties. This also highlights the very broad variety of tasks that police in our society are
asked to perform; in essence, police wear many and varied “hats.” When something
appears to be amiss, police are usually the first people called, and as such they
respond to an infinite variety of problems requiring them to do something in
response. The complex nature of police work is captured in one researcher’s concep-
tualization of police as a “regulatory agency”: “They regulate relationships between
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citizens and between citizens and institutions” (Klockars, 1985, p. 105). Yet, police
must often act with little information and little time to gather, evaluate, and consider
information; police must often “run roughshod over ambiguity” (Herbert, 1996). As
one researcher summarizing the results of extensive field studies of police work
notes: “. . . field observations document . . . the realization that the police had to
improvise their way through many situations” (Goldstein, 1993, p. 33).
There are contradictions inherent in the role of the police in our society. As a
democratic society, we place a high emphasis on individual freedom and liberty.
Yet totally unconstrained liberty would result in civil disorder, with people con-
stantly infringing on the rights of their neighbors; thus your right to enjoy peace
and quiet at midnight on a Sunday so that you can do well on your Monday morn-
ing exam requires that I refrain from playing music too loudly at that hour. Should
I fail to recognize this, you may decide to call your local police to help impress this
fact upon me. Police therefore must help maintain the balance of order and liberty,
of restraints on individuals’ activities in the interests of the greater good, and of
respect for individual freedom and civil liberties that are the essence of a demo-
cratic society. While maintaining order in our diverse, pluralistic society, with its
consequently localized and sometimes conflicting norms about what constitutes
“order,” police must wield their authority and their power to exercise discretion
(i.e., to make choices) in determining how to perform their work very carefully. For
if police do not observe constraints on their behavior, we risk having infringement
on our liberties by police themselves.
It is clear that police work involves many dimensions, and police activities
directly influence the work of other actors in the criminal justice process, most
notably the prosecutor and defense attorneys. The quality of the evidence gathered
by police in their investigation of a potential crime determines whether the prosecu-
tor will be able to file charges in a particular case. Yet, one study found that most
case attrition occurs between the time of arrest and the filing of charges (Petersilia,
Abrahamse, and Wilson, 1987). It is important, then, that police and prosecutors
have a good working relationship and communicate clearly about how to achieve
mutually desired goals. For example, research on the effectiveness of police proce-
dures has noted that whereas police only need probable cause to arrest, prosecutors
may be reluctant to pursue a case if the evidence won’t meet the reasonable doubt
standard. This suggests that successful prosecution efforts require better communi-
cation between police and the district attorney’s office; for example, the develop-
ment of guidelines that clearly indicate to police officers what types of evidence and
information are needed by the prosecution in order to successfully pursue a case
(Petersilia et al., 1987). This would help avoid breakdowns in communication,
which is another reason why some potential cases don’t make it to the courtroom.
The multifaceted nature of police work means that police are frequently called
upon to exercise their decision-making abilities. For example, perhaps you have
been pulled over for speeding. If so, the officer may have given you a speeding
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ticket. However, the officer may have let you go with only a warning. This is one of
the most common examples of police discretion in action, and it illustrates how dis-
cretion is a key feature of police work (Goldstein, 1960; Davis, 1975; Bordner,
1983). Discretion is inherent in police work both at the level of police department
policies and priorities, and in the daily decision-making of individual officers. For
example, police departments must decide how to allocate their personnel and other
resources, which means deciding what kinds of crimes should receive high-priority
attention by police and which ones can be de-emphasized. In setting such priorities,
police departments must consider the priorities of other agencies that they work
with and the needs of the communities in their jurisdiction.
At another level, individual officers must decide whether or not to initiate a
vehicle pursuit of a suspect, and if the pursuit becomes a high-speed chase that
poses a danger to the public, whether and when to discontinue the pursuit. Officers
also make daily decisions about whether to stop and question people, whether to
offer assistance to stranded motorists, and whether to ask loitering teenagers or
homeless people camped out on public property to “move along.” A useful defini-
tion of police discretion is the following (Davis, 1969):
A police officer or police agency may be said to exercise discretion whenever effective limits
on his, her, or its power leave the officer or agency free to make choices among possible
courses of action or inaction.
Far from being an aberration representing a departure from the “ideals” of law
enforcement, then, the exercise of discretion is part and parcel of policing and is
thus a fundamental feature of police work. An officer who decides to take action
where she or he has the choice of whether to do so, such as deciding to stop or
arrest someone, rather than simply letting the matter rest, is exercising discretion.
But the officer who decides to avoid action, by choosing not to pursue a case, or not
to enforce the law to the limit in a particular situation, is also exercising discretion;
in such situations, the decision not to pursue the matter means that some incidents
(and therefore some suspects) will never make it to court. However, police failure
to take action can sometimes result in civil liability lawsuits against police depart-
ments. Police departments have been sued for failure to arrest in cases of domestic
violence, for failure to stop and offer aid to motorists, and for failure to arrest sus-
pected drunk drivers who were stopped but merely warned by police (Kappeler,
1997). The success of such lawsuits varies depending upon the circumstances of
the case, the legal theory underlying the lawsuits, and the nature of the applicable
precedents.
The central role that discretionary decision-making plays in policing is due to
the nature of the institution of policing and the nature of police work. Due to lack
of resources, police cannot practice full enforcement of the law: it is not possible to
investigate all crimes and pursue all lawbreakers. It is also arguably not desirable
from a societal perspective for police to take a “total enforcement” approach, as
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this would ignore public sentiments that support more vigorous enforcement of
some laws than others. For example, if the police were to suddenly begin earnestly
attempting to enforce all violations of the speeding laws, public outcry would
almost certainly result. Many people in society would not appreciate full enforce-
ment of the gambling laws, either, if it meant that the charity bingo event held in
the local church had to be canceled, or that people gathered in a private home with
friends to wager modest sums on a hot poker game would be arrested and hauled
off to court.
Even if police possessed the resources to enforce most laws “to the letter,”
scholars of policing and sometimes police themselves can point to circumstances
where police probably should not practice full enforcement. For example, both the
actual security of the public, and residents’ feelings of safety and security, may be
better served when police choose not to enforce the law at a particular time and
place (Cohen and Feldberg, 1991). For example, Cohen and Feldberg discuss the
dilemma faced by police providing security at a large rock concert. The concert is
well under way, with thousands of fans jammed into the area in front of the stage.
Some of the concert-goers are drunk or drugged, and there are cash drug transac-
tions openly occurring in this area during the concert. Police can see this, and some
fans may wonder why the police do not immediately move in and grab the sus-
pects. However, this situation poses a dilemma for police, because they must con-
sider the possible risks to public safety if they should attempt to nab the dealers
right then and there. Police action under the circumstances might spark hostility
and result in drunk, drugged fans becoming enraged and battling police and each
other, with innocent people harmed in the process; this is the exact opposite of the
police goal of maintaining public safety and security at this concert. Thus police
should consider whether a better alternative from a public safety perspective might
be to wait until the concert is over and try to catch the suspects as they leave
(Cohen and Feldberg, 1991, pp. 70–88). In the words of one researcher, “police
discretion often means choosing between enforcing the law or maintaining public
order” (Vick, 1985).
The increasing emphasis on police-community relations fostered by a shift
toward “community policing” also raises the question of the degree to which offi-
cers should take local norms and customs into account in exercising their discre-
tion. For example, if city regulations prohibit alcohol consumption in public,
should police enforce this law to the same extent in all neighborhoods in that city?
What if it is a common, generally accepted custom in some neighborhoods for res-
idents to sit out on their front porches on a hot summer evening while drinking
beer? In this context, police enforcement of the law may elicit a different reaction
from residents of this community than in another community with different local
customs. It could thus be argued that policing that is responsive to the community
should take community norms into account, and that this is preferable to “across
the board” enforcement of the law without the reasoned exercise of discretion
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Police: The “Gatekeepers” of the Criminal Justice System 255
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(Kelling, 1999). However, this argument makes the questionable assumption that
there are shared community norms, despite the fact that there may actually be little
community consensus on which behaviors are acceptable or not. Such situations
raise important challenges for police departments and individual officers, chal-
lenges that once again illustrate the central role that police discretion plays.
Police departments and individual officers alike must consider how best to
use their limited resources to focus on the most pressing needs of their jurisdiction.
Which problems pose the greatest threat to the community? Which problems are of
greatest concern to the community? Sometimes, problems of concern to many in
the community may not be actual crimes, but rather issues of maintaining order,
such as residents’ perceptions that loitering teenagers pose a threat. In Berkeley,
California, a city famous for its history of political activism, merchants reported
concern to police about the growing number of “day laborers” seeking work on the
streets. The merchants complained about the presence and activities of the day
laborers, many of them illegal immigrants whose sole means of support consists of
participating in the daily scramble when a driver pulls up to offer a job (usually
involving unskilled or semi-skilled labor for very modest compensation). Is this a
matter for the police to address, or should the Berkeley City Council instead (or in
addition) try to come up with a solution that addresses the needs of the merchants,
their customers, and the laborers themselves?
The nature and extent of crime and public order problems facing police vary
from area to area, and police priorities reflect this fact. Police officers must fre-
quently exercise their discretion during the course of the situations they encounter
daily, and the local context provides different challenges. In large urban areas, for
example, police are far less likely to be concerned by the discovery of a window
box sporting cannabis plants among the marigolds than they might in a small town.
Similarly, police in rural areas must deal with crimes that urban police officers
probably rarely encounter, such as crop and livestock thefts. A farmer whose valu-
able avocado crop has been harvested and trucked away by midnight thieves faces
a significant loss of livelihood, and a rash of such crop thefts is likely to be a high
priority for the police or sheriff in agricultural areas.
Because police are the “gatekeepers” of the criminal justice system, their
decisions affect the criminal justice system and society as a whole. Police officers’
decisions about how to respond to domestic violence calls, for example, determine
whether and how public policies designed to deter domestic violence (e.g., manda-
tory arrest) are actually implemented. This example illustrates why the role of the
police, and police discretion, is so central in the criminal justice process: Police are
the ones who translate “law on the books” into “law in action” through the deci-
sions they make in the course of their work. The most carefully thought out crime
policy will have little meaning if it is not put into practice by criminal justice
actors, such as the police (and members of the courtroom work group).
Police discretion, and community perceptions of how police exercise their
powers of choice, have important implications for police-community relations. For
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example, police policies and practices regarding traffic stops may be a key influ-
ence on community perceptions of police and the criminal justice system, as con-
troversies over the issue of racial profiling illustrate.
Due to the individualized nature of the situations police encounter in their
work, they must make decisions about how to respond in each case; although the
actions of police are in theory guided by the law and by police department policies
and guidelines, in practice police officers must determine which rules are relevant
and how to apply them to the particular situation at hand. Discretion, therefore, is
an inherent and necessary characteristic of police work. It allows police to tailor
their responses to individual situations and to prioritize which tasks they should
focus on. For instance, going back to our traffic violation example, an officer who
stops you for speeding may decide not to ticket you because you have no prior
moving violations, you were only going a few miles over the speed limit, and you
promise not to speed again. If any of these factors were different, however, the offi-
cer might decide instead to issue a ticket. Therefore, you can see how discretion
opens up the potential for selective enforcement of the law, for favoritism and bias.
THE PROS AND CONS OF DISCRETION
Herein lies a recurring societal dilemma: we want personalized justice rather than
mechanized, across-the-board rote application of the law by our police, but we also
want equal treatment of similar cases and offenders. This is the dilemma of “equal-
ity versus discretion” (Wrightsman, Nietzel, and Fortune, 1994). Sometimes, we
appear to want police officers to use their discretion to fail to enforce the letter of
the law when we believe that this is appropriate. If you have received a warning
about speeding instead of a ticket, you probably feel the officer acted appropriately
in exercising discretion in your case; and many people would approve such discre-
tion by an officer who stops a speeding car only to discover that the anxiety-racked
driver is a husband trying to make it to the hospital before his wife gives birth in the
back seat. Yet discretion by police often brings cries of “foul!” as well, as when
police appear to be favoring certain individuals or groups. The way we perceive
police discretion (or discretion by other criminal justice system actors, for that
matter) may depend upon how we conceptualize justice. Cohen describes two dif-
ferent views: the idea that justice represents treatment particularized to an individ-
ual; and the idea of justice as equal treatment (Cohen, 1985). However, think about
the concept of “equal treatment” for a moment. Does equal treatment necessarily
mean identical treatment of all similar cases? Alternatively, if we conceptualize
“equal” treatment as meaning “fair” treatment, this might suggest that we could—
and perhaps should—treat everyone fairly not by handling all cases in an identical
manner, but by customizing justice to take into account the particular circum-
stances of the case. Thus, for example, under this definition of “equal” treatment,
we might want a police officer to respond differently to a driver who was weaving
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slightly because he or she was distracted by the earsplitting caterwauls of an
unhappy cat in its backseat carrier, versus a driver who was weaving due to imbib-
ing during lunch. On the other hand, differential treatment raises the specter of bias
(whether negative or positive, in the sense of favoritism), and therefore police dis-
cretion is a source of continuing controversy.
What Influences Police Exercise of Discretion?
Now that we’ve seen how important police discretion is in determining which
cases make it to court and which do not, let’s look at some of the evidence on how
police exercise their discretion. How often, and in what types of situations, do offi-
cers actually choose to exercise discretion? What factors influence the way that
police use their discretion?
Research has shown that the nature and extent of the exercise of discretion by
police varies according to the characteristics of the officer, the police department,
the nature of the offense, the relationship between the victim and offender, and
possible penalties for the offense.
Officer/Department Characteristics Influencing Discretion
Studies of police discretion have found that organizational characteristics of the
police department and the characteristics of officers themselves can influence how
officers exercise discretion. For example, the likelihood of officers arresting a sus-
pect rather than choosing not to arrest may vary by the organizational structure and
size of the police department (Smith and Klein, 1984; Mastrofski, Rilti, and Hoff-
master) 1987). A study of Maine police officers’ use of discretion in handling driv-
ing offenses found that officers who felt that penalties for such offenses were too
harsh were less likely to cite or arrest offenders, and that officers with fewer years
in service were also more likely to exercise discretion (Meyers, Heeren, and Hing-
son, 1989).
The Nature of the Offense/Offender
Police perceptions of the members of the public they encounter can influence their
exercise of discretion as well. Research examining police discretionary decisions
in nonfelony cases in three selected Southern cities and towns in the United States
found that African American suspects were treated less favorably than white sus-
pects by police (Powell, 1990). However, other research did not find this effect for
race (Klinger, 1996). Another study found that Danish police were more lenient
with citizens they perceived as respectable and law-abiding, in contrast to those for
whom they made less favorable attributions (Holmberg, 1998). An experiment
examining influence on discretion with Australian police found that officers’ per-
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ceptions of the credibility of victims alleging that they had been raped varied with
the victim’s level of inebriation (Schuller and Stewart, 2000). While the results of
such studies may not be applicable in other locations, they are instructive in illus-
trating the vast range of potential influences on police discretion. As Brooks (2001,
p. 25) discusses, there are conflicting interpretations of research examining the
relationship between citizen demeanor and the responses of police officers.
Not surprisingly, officers’ perceptions of the nature and seriousness of the
activities they encounter in their work affects their reactions. For example, police
encounters with juvenile offenders reveals that juveniles suspected of a felony are
usually arrested, but those suspected of less serious crimes are usually not arrested,
but are handled through “informal” means (Berger, 1996). In another study, approx-
imately half of police officers who witnessed elder mistreatment reported the prob-
lem, and an even smaller percentage reported exploitation of elders (Daniels et al.,
1999). Another study illustrated the complexity of police decisions about how to
handle people who appeared to be mentally ill and in need of assistance (Green,
1997). Police decisions about whether to arrest people who appeared to be men-
tally ill, versus other options, such as transporting them to a hospital or simply try-
ing to talk to the person and calm him or her down, depend upon a variety of
factors. For example, the officer’s estimate of the probability that the person presents
a danger, and the officer’s perception that the person’s behavior might escalate into
a situation requiring further police intervention, influenced officers’ responses in
such situations (Teplin, 2000).
As has been mentioned earlier in this book, the nature of the relationship
between a victim and an offender has historically been an important determinant of
police response to certain kinds of crimes (Black, 1980). Police have traditionally
been less likely to arrest the suspect the closer the suspect’s relationship to the vic-
tim, especially in cases of domestic violence or rape. In recent years, public atten-
tion and activism has illuminated this situation, and thus the disparity in police
response to these kinds of cases (versus other kinds of cases) is less than it used to
be. Nonetheless, as is discussed in the following section, police discretion ulti-
mately determines how and when the law is applied by officers working the streets.
For example, Buzawa and Buzawa (2001) discuss research showing significant
variation in the degree to which police officers have actually implemented manda-
tory arrest policies in domestic violence cases.
Police Discretion and Offense Penalties
Crime policies that mandate that certain actions be taken in response to a potential
or actual offense provide an illuminating example of the importance of discretion
in criminal justice decision-making. For example, research has shown that
“mandatory arrest” policies requiring police to arrest suspected abusers in cases of
domestic violence are not necessarily enforced 100 percent by the police; that is, in
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some cases, despite such policies, arrests may not be made (Lerman, 1992). Simi-
larly, statutes mandating police arrest of suspected drunken drivers may not be
fully implemented by some police departments and officers (Meyers et al., 1987).
In one state, when a new law was passed mandating that anyone caught carrying a
handgun under certain circumstances faced a mandatory jail term of no less than
one year, observers questioned how this influenced the likelihood of arrest. Some
critics of the law suggested that some officers may have altered their behavior in
order to avoid subjecting citizens unfairly to the perceived harsh penalties of the
new law. Research does suggest that police enforcement of the law varies accord-
ing to community norms and values (Goldstein, 1960).
THE ARGUMENT OVER POLICE DISCRETION
Some argue that police have too much discretion, and this results in bias, discrimi-
nation, and favoritism in the types of cases and offenders who make it to court. A
related criticism is that when police exercise discretion in deciding how to enforce
or not enforce the law, they are taking the law into their own hands and in effect
usurping the power of the legislature to determine what the law is (Klockars,
1985). For example, critics cite evidence from law enforcement files, which shows
the practice of racial profiling by police in some jurisdictions (American Civil Lib-
erties Union, 1999; Zamora, 2001) (see Box 9.2). Others point to the reluctance of
some police departments to pursue certain kinds of cases, such as rape cases.
The coercive authority of police to place an individual under arrest raises
many questions about the nature and impact of police discretionary decisions asso-
ciated with this power. Police sometimes choose not to make an arrest even when
there is sufficient evidence that a crime has been committed and the suspect is
known (Goldstein, 1993, p. 34). For example, we saw that police are less likely to
make an arrest in assault cases when the victim and the suspected offender have a
close relationship (Black, 1980). At the other end of the spectrum, when police
officers arrest someone without intending to prosecute the person (for example, in
order to compel a witness to reveal what they know to the police, or to intimidate
suspected gang members), this raises ethical and legal questions about the appro-
priate purposes of the power to arrest (Goldstein, 1993, p. 35).
In contrast to those concerned that the police possess too much discretion to
interpret and apply the law, some people argue that police have too little discretion,
and that this lets some offenders slip through the cracks because police cannot use
certain tactics. For example, adherents of this position argue that the Fourth
Amendment prohibition on unreasonable searches and seizures, and the concomi-
tant exclusion of evidence that is illegally obtained under the Exclusionary Rule,
serve as undesirable constraints on police. However, the evidence does not support
this assertion (Fyfe, 1983; Nardulli, 1983). Similarly, it has been argued that police
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The Argument Over Police Discretion 261
should have greater leeway in the interrogation techniques that they may legally
use to obtain a confession from a suspect. Others argue, however, that police are
already allowed too much leeway in this regard.
A realistic perspective on police discretion recognizes that it is an inherent
and inevitable aspect of police work that can be used to achieve both desirable and
undesirable legal and social ends. For example, in addition to allowing police to
“tailor justice” to accommodate mitigating circumstances, police discretion may
help blunt the impact of “bad laws”; that is, statutes which may be ill-considered in
design or application, perhaps because the law is outdated or reflects hasty policy-
making by lawmakers (Klockars, 1985). However, police discretion also allows
police misconduct and abuse of power to occur. For example, decisions to selec-
tively enforce or not enforce the law with respect to certain categories of people
(certain ethnic groups, students versus seniors, poor compared to affluent people)
can not only have life-changing consequences for the individuals involved, but can
harm public perceptions of the legitimacy and fairness of the criminal justice sys-
tem as well.
One thing is clear concerning police discretion: The manner in which police
discretion is exercised is critically important, for a number of reasons. Police
BOX 9.2
The California Highway Patrol and Racial Profiling
“You kiss a lot of frogs before you find a prince.” Although this statement might remind you of
a child’s fairy tale, it actually represents the words of a California Highway Patrol (CHP) Super-
visor testifying under oath at a legal deposition (Zamora, 2001, p. A1). The supervisor was dis-
cussing the CHP practice of stopping motorists in the search for drugs, and asserting that many
stops must be made in order for officers to successfully locate a driver transporting illegal drugs.
The supervisor was testifying in response to a 1999 lawsuit against the California Highway
Patrol by the American Civil Liberties Union (ACLU), alleging that the CHP selectively tar-
geted minority drivers for traffic stops. In response to the allegation of racial profiling, in 2001
many internal CHP documents were turned over to the ACLU as part of the process of discov-
ery. According to the CHP’s own statistics, in some parts of California, Latino and black drivers
were two to three times more likely than white drivers to be stopped, and more likely once
stopped to be asked by CHP officers if their cars could be searched. This was particularly
notable because of the fact that the California Highway Patrol had released a public report the
previous year (2000) that concluded that there was little evidence to support concerns about
racial profiling by the CHP (California Highway Patrol, 2000). However, in response to the
CHP supervisor’s “frog” reference, one ACLU official noted: “The obvious problem is that
most ‘frogs’ the CHP is stopping are Latino and African American . . . who are forced to endure
the loss of personal liberties because of their skin color . . .” (Zamora, 2001, p. A1).
Source: Copyright © The San Francisco Chronicle. Reprinted with permission.
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decision-making about which goals to pursue and what means can or should be used
to achieve these goals influence a number of stakeholders, including individuals who
come in contact with the police, the general public, agencies and individuals that
comprise the legal system, and the police themselves. However police determine
which tasks take priority, and which crimes and suspects merit more or less attention,
the consequences will be felt in a number of ways. Thus, for example, police deci-
sions about which kinds of crimes are top priority determine what cases prosecutors
and other members of the courtroom work group eventually see; police discretion
determines the degree to which public policies on crime are implemented (e.g.,
mandatory arrest policies); and police discretion has an enormous impact on police
community relations, and the perceived legitimacy of the criminal justice system.
Police discretion can result in decisions that raise legal as well as social issues for
police departments (e.g., “hot pursuits” of vehicles by police can expose police
departments to civil liability lawsuits by third parties who are injured in such chases).
Given this, it is not surprising that an enduring topic of both theoretical and
applied research on police and policing is the question of how police discretion can
be regulated. How much discretion should police officers have? How can officers be
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262 Some Cases Don’t Make It to Court
BOX 9.3
Free Coffee and Pie?
You are an officer who occasionally stops by a café for a coffee on your break. After several vis-
its during which you and the café owner, “Ted,” make pleasant small talk, the friendly owner
begins to insist you take free coffee and pie whenever you stop by. “I just want to show my
appreciation for the hard job you folks in blue are doing for our community,” says Ted.
Should you accept? Why or why not?
Now suppose one night you pull over a driver who just ambled slowly through a bright
red light. No other cars were around, so no one was hurt. You recognize that the driver is Ted,
the café owner. He apologizes repeatedly for running the light, explaining that he was tired from
having slept poorly the previous night. After explaining, Ted says “Hey, you aren’t going to give
your old pal here a ticket for a little mistake like that, are you?” What are your options as an offi-
cer responding to this incident?
1. How are you going to handle the ticketing decision?
2. Should you keep going to the café and accepting free food after this?
Remember that perceptions are critical: your perception, as an officer, of the café owner’s
intent; the owner’s perception of you in your role as a representative of the government; and
other onlookers’ perceptions of your actions. Given this, what do you think are the possible con-
sequences of your decisions about the issues in (1) and (2) above?
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trained to develop their abilities to exercise good judgment during crucial decision-
making tasks? Even the most seemingly trivial decisions facing a police officer can
have significant repercussions for police–community relations, as the example of
the “free coffee” dilemma in Box 9.3. How can discretion that is abused be sanc-
tioned? What methods are available for regulating, reducing, monitoring, or other-
wise influencing the amount of discretion officers have and the opportunities they
have to use discretion? Attempts to regulate police discretion have formed the sub-
stance of many of our landmark criminal justice decisions (such as the Miranda doc-
trine). The existence of police misconduct illustrates all too well the power of
discretion and the potentially deadly consequences of its abuse. However, there is
also cause for optimism to be found in that efforts to regulate police discretion and
prevent its abuse have shown some success (Walker, 1993).
CONCLUSION
Clearly, many, if not most, potential criminal cases never actually make it to court,
for a variety of reasons. Regardless of which model of the criminal justice process
one uses, the evidence shows that only a fraction of possible cases remains after the
“winnowing process.” Some actions are not defined as crimes at all; other crimes
are not reported to police for some reason. Police discretion to make decisions
about what incidents and individuals to focus on, and how to respond to potential
crimes, has a huge impact on which cases make it into the criminal justice process.
Prosecutorial discretion, as we saw earlier in Step 5, is the key to determining
which cases brought by the police ultimately make it to court, and which cases do
not. The cases that do appear in court, therefore, are only a sample, and not a repre-
sentative sample at that, of the crimes that occur in our society.
D I S C U S S I O N Q U E S T I O N S
1. Consider the discussion at the beginning of the chapter on how some actions are not defined as
crimes under the law. Can you find examples in your newspaper of current controversies that illus-
trate this? For example, should human cloning be against the law? How might political and socie-
tal pressures influence whether or not a particular activity is defined as a crime?
2. What are some of the reasons that crimes fail to come to the attention of police? What steps could
be taken to address this situation (e.g., what might encourage victims to report)?
3. Why is it important that the police and prosecutors have a good working relationship in order for
the criminal justice process to function effectively? What kinds of problems can result from a lack
of communication between police and prosecutors?
4. Consider some of the difficulties of measuring case attrition. How should we count “lost” cases?
For example, how would you account for prosecutorial overcharging when trying to determine an
attrition rate? How would you figure out how many cases that “fell out of ” the criminal justice
system were cases that should have resulted in a conviction, and how many cases were those that
were appropriately dropped (e.g., evidence exonerated an innocent suspect)?
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Discussion Questions 263
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5. What are the advantages and disadvantages of police discretion? How (and why) is discretion
integral to the practice of policing? Why is police discretion difficult to regulate?
6. How is police discretion is linked to issues such as police misconduct, including the problem of
racial profiling.
7. Why is the exercise of police discretion a critical influence on police–community relations and
public perceptions of the legitimacy of the criminal justice system?
N O T E
1. For example, historically the “rule of thumb” in English law has been said to condone domestic
violence by allowing a man to beat his wife for the purpose of “disciplining her” as long as the
man chastised her with a stick no bigger in diameter than his thumb. Another example is this:
Identity theft was not a crime in some jurisdictions until recently, when legislators quickly passed
laws to address this gap in the statutes so that prosecutors could pursue cases of identity theft.
Similarly, the practice of photographing people’s bodies without their knowledge, for example, by
positioning tiny microcameras so as to shoot footage of women’s bodies underneath their skirts,
then posting the result on the Internet, is relatively recent and poses an interesting example of the
crime definition issue. Finally, the lack of adequate safety training for workers facing occupational
hazards is often considered an offense, but is rarely denoted as a crime under current laws. Instead,
it is usually defined as a violation of civil law (administrative regulations).
R E F E R E N C E S
Berger, R. (1996). Legal and extralegal factors in police and court processing of juveniles. In Ronald
J. Berger (ed.), Sociology of Juvenile Delinquency, 2nd ed., pp. 403–416. Chicago: Nelson-Hall
Publishers.
Black, D. (1980). The Manners and Customs of the Police. New York: Academic Press.
Bordner, D.C. (1983). Routine policing, discretion, and the definition of law, order, and justice in
society. Criminology, 21(2): 294–304.
Brooks, L. (2001). Police discretionary behavior: A study of style. In R. Dunham and G. Alpert
(Eds.), Critical Issues in Policing: Contemporary Readings, pp. 117–131. Prospect Heights, IL:
Waveland Press.
Bureau of Justice Statistics. (2001, February). Contacts between police and the public: findings from
the 1999 national survey. U.S. Department of Justice. NCJ 184957.
Buzawa, E., and Buzawa, C. (2001). Traditional and innovative police responses to domestic vio-
lence. In R. Dunham and G. Alpert (Eds.), Critical Issues in Policing: Contemporary Readings,
pp. 216–237. Prospect Heights, IL: Waveland Press.
California Highway Patrol. (2000). Public contact demographic data summary. California Highway
Patrol report to Governor Gray Davis. Sacramento: California Highway Patrol.
Chaiken, M., and Chaiken, J. (2000). Priority prosecution of high-rate dangerous offenders. Chapter
14 in Barry Hancock and Paul Sharp (Eds.), Public Policy, Crime, and Criminal Justice, 2nd ed.,
pp. 227–239. Upper Saddle River, NJ: Prentice-Hall.
Cohen, H. (1985). A dilemma for discretion. In William Heffernan and Timothy Stroup (Eds.), Police
Ethics: Hard Choices in Law Enforcement, pp. 69–80. New York: John Jay Press.
Cohen, H. and Feldberg, M. (1991). Power and Restraint: The Moral Dimension of Police Work. New
York: Praeger.
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Daniels, S., Baumhover, L., Formby, W., and Clark-Daniels, C. (1999). Police discretion and elder
mistreatment: A nested model of observation, reporting, and satisfaction. Journal of Criminal Jus-
tice, 27(3): 209–25.
Davis, K. (1969). Discretionary Justice. Baton Rouge, LA: Louisiana State University Press.
Davis, K. (1975). Police Discretion. St. Paul, MN: West Publishing.
Feeney, F., Dill, F., and Weir, A. (1983). Arrests Without Conviction: How Often They Occur and Why.
Washington, DC: U.S. Department of Justice.
Finkelhor, D. and Ormrod, R. (2001, May). Child Abuse Reported to the Police. Office of Juvenile
Justice and Delinquency Prevention. NCJ 187238.
Fitzgerald, N. and Riley, K.J. (2000, April). Drug-facilitated rape: Looking for the missing pieces.
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Friedman, L.M. and Percival, R.V. (1981). The Roots of Justice: Crime and Punishment in Alameda
County, California, 1870–1910. Chapel Hill: University of North Carolina Press.
Fyfe, J.J. (1983). The NIJ study of the Exclusionary Rule. Criminal Law Bulletin, 19: 253–60.
Gottfredson, M.R. and Gottfredson, D.M. (1988). Decision Making in Criminal Justice: Toward the
Rational Exercise of Discretion, 2nd ed. New York: Plenum.
Goldstein, H. (1993). Confronting the complexity of the policing function. In Lloyd Ohlin and Frank
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Goldstein, J. (1960). Police discretion not to invoke the criminal process: Low visibility decisions in
the administration of justice. Yale Law Review, 69: 543–594.
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cache becomes largest in U.S. San Francisco Chronicle, p. A1.
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tal health agencies. International Journal of Law and Psychiatry, 20(4): 469–86.
Harris, D. (1999, June). Driving while black: Racial profiling on our nation’s highways. An American
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Herbert, S. (1996). Morality in law enforcement: Chasing “bad guys” with the Los Angeles Police
Department. Law and Society Review, 30(4): 799–818.
Holmberg, L. (1998). Policing the customers: How Danish community policy officers label the people
they work among. Criminal Justice Policy Review, 9(2): 169–84.
Kappeler, V. (1997). Critical Issues in Police Civil Liability. Prospect Heights, IL: Waveland Press.
Kelling, G.L. (1999). Broken Windows and Police Discretion. Washington, DC: U.S. Department of
Justice, Office of Justice Programs, National Institute of Justice.
Klinger, D. (1996). More on demeanor and arrest in Dade County. Criminology, 34: 61–82.
Klockars, C. (1985). The Idea of Police. Beverly Hills, CA: Sage.
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C. Phillips (Eds.), Evaluating Performance of Criminal Justice Agencies. Beverly Hills: Sage.
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Justice: The Tension between Individualization and Uniformity. New York: State University of
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Federal Justice Statistics, 1998. (2000). NCJ 180258.
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Walker, S. (1993). Taming the system: The control of discretion in criminal justice, 1950–1990. New
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Pacific Grove, CA: Brooks/Cole Publishing Company.
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run greater risk of being pulled over. San Francisco Chronicle, p. A1.
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Step 10
“You Ring, We Spring”: The Role of
Bail in the Court System
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❖
In the last chapter, we examined the screening process through which cases must
go and learned that all cases must make it through several levels of scrutiny before
going to trial. Because these procedures (and pre-trial motions and preliminary
hearings) may take a great deal of time, the vast majority of defendants seek pre-
trial release. The means by which defendants can be released before trial usually
involves posting bail.
By the end of this chapter, you will be able to explain how the bail process
works and present a short history of bail. You will be able to recognize the different
types of bail systems in use in the United States, and discuss the influences of oth-
ers in the justice drama concerning this issue. You will be able to list several prob-
lems associated with the bail system and will be able to relate what influences
pre-trial detention can have on defendants.
THE BAIL SYSTEM
Bail is a unique guarantee system by which the courts try to ensure that defendants
will show up for their trials by forcing them to deposit money or other collateral
with the courts in exchange for release before trial. If defendants do not return for
their trials, the money or collateral is forfeited. If they do return, defendants are
entitled to a return of their collateral regardless of the trial outcome. That means
that even persons who are found guilty after trial, or who plead guilty, must still get
whatever bail they posted returned to them.
Judges or magistrates usually set bail, but the police or the district attorney
can set bail in some jurisdictions. Even in jurisdictions where judges set bail, oth-
ers in the justice drama (e.g., police, prosecutor, or victim) may have influ-
ence on whether bail is granted and the amount required for bail (Feeley, 1979,
pp. 209–210; Wice, 1985, p. 55). In most jurisdictions, law enforcement agencies
follow bail guidelines established by the court so that accused individuals can post
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bond and be released from custody. If these guidelines were not used, every
arrested person would have to wait for a judge to set bail, which would be an
unnecessary delay and would needlessly crowd the jails and courtrooms. These
guidelines, for example, are how most drunk drivers get out of jail before trial. The
police consult the guidelines and allow accused persons to post bail and leave.
Those who wish to see a judge, perhaps to get their bail amount reduced, must wait
until their initial hearing.
Interestingly, the U.S. Constitution does not guarantee any person bail, only
that it not be excessive if it is granted.1 Although no person is automatically entitled
to bail, most defendants are granted bail in some form. Proponents of the bail sys-
tem argue that bail amounts are often “excessive,” but the Supreme Court has not
defined an exact amount that is fair. For this reason, we sometimes see defendants
whose bail is a million dollars or more, especially if their alleged crimes are serious.
Although bail was initially designed to release defendants from incarceration
so that criminal justice system personnel were no longer obligated to house, feed,
or clothe them, high bail amounts have been used throughout American history as a
way to keep defendants in jail prior to their trials. Lester (1965), for example,
details how civil rights activists in the 1960s were detained in lieu of $4,500 bonds
for disturbing the peace. Now, bail is strongly tied to the seriousness of the offense,
the accused’s prior record, or other legal factors. See Box 10.1 for criteria com-
monly used in deciding whether or not to grant bail.
Even now, however, extra-legal factors affect bail. Those who have few ties to
the community (e.g., work, family, or home ownership) sometimes have to post
higher bail amounts because of the court’s perception that, when substituting finan-
cial ties to the court in place of formal ties to the community, the financial incen-
tives to remain in the jurisdiction need to be higher than usual. Ironically, those
who are unemployed or who do not own their homes may be less likely to be
released without having to post bond or may be asked to post a higher bond than a
similarly situated defendant who has a job or home in the community. At first
glance, these disparities appear to be based on the reality that bail is often set
higher for individuals who are considered by the court to be a high flight risk. The
reasoning here is that would-be absconders will think twice before risking the loss
of a significant amount of money or collateral. Some people feel this is unfair
because there is no flight risk predictor that is 100 percent accurate. In some
respects, however, setting higher bail for those who appear to pose a high flight risk
is similar to automobile insurance companies that charge (and keep) higher premi-
ums regardless of whether “high-risk” drivers are ever involved in an accident.2
Belonging to groups that have higher rates of absconding (e.g., those without com-
munity ties, the unemployed, and those with prior records) may mean that an indi-
vidual who would never consider fleeing the jurisdiction must post higher bail or
remain jailed until he or she can obtain the funds or a surety (i.e., a person who
will guarantee, often through posting of funds or collateral, that the defendant will
show up for trial). An interesting twist to this rule is that bail is sometimes set
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The Bail System 269
BOX 10.1
Common Bail Guidelines
The 1966 Bail Reform Act established specific criteria to be used in federal pre-trial release
decisions. Because many states adopted these same criteria, they are important. One criticism of
these guidelines is that they do not provide weighting factors, meaning that one judge could
base 90 percent of his or her decision on just one of the factors, while another may assign sig-
nificant values to each criterion (Harmsworth, 1996). As you read these criteria, think about
which you would “score” highly on and which you might not do so well on. Would you qualify
for bail? Although you may not have a record of convictions or previous flights to avoid prose-
cution, how long have you lived in your community (especially salient for students who relocate
for college)? Do you have a stable work record? What changes would you recommend to a com-
mission that is studying fairness in bail decisions? What are the differences between the 1966
and 1994 guidelines? Why do you think the guidelines changed? What criteria do you feel
should be included that are not on either of the two lists?
1966 guidelines: 18 U.S.C. section 3146(b):
1. the nature of the offense charged
2. the weight of the evidence against the accused
3. the accused’s family ties
4. employment
5. financial resources
6. character
7. mental health
8. the length of residence in the community
9. a record of convictions; and
10. a record of failure to appear at court appearances or of flight to avoid prosecution
The current (1994) federal guidelines: 18 U.S.C. section 3142(g):
1. the nature and circumstances of the offense charged, including whether the offense is a
crime of violence or involves a narcotic drug;
2. the weight of the evidence against the person;
3. the history and characteristics of the person, including—
(A) the person’s character, physical and mental condition, family ties, employment, finan-
cial resources, length of residence in the community, community ties, past conduct,
history relating to drug or alcohol abuse, criminal history, and record concerning
appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on
parole, or on other release pending trial, sentencing, appeal, or completion of sentence
for an offense under Federal, State, or local law; and
4. the nature and seriousness of the danger to any person or the community that would be
posed by the person’s release (taken from Harmsworth, 1996).
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higher for wealthy individuals because the court may feel they are willing to forfeit
traditional bail amounts.
Most bail amounts are relatively reasonable, with half of felony defendants
receiving bail that is $10,000 or less (Hart and Reaves, 1999). Due in part to their
increased likelihood of jail time, those charged with violent offenses tend to get
higher bail amounts; 40 percent of such defendants receive bonds that are $25,000
or higher (Hart and Reaves, 1999). Murder cases, of course, usually involve the
highest bail amounts. When it is required at all, bail for misdemeanor cases tends
to be even lower.
Sometimes, bail can be very high, even for cases that do not involve homi-
cide. When heavy metal singer Tommy Lee was arrested for domestic violence
against his wife, his bond was set at a whopping $1 million because he was already
on probation for attacking a photographer and guidelines called for $500,000 ini-
tial bail (Rocker Tommy Lee jailed for abuse, 1998). In addition to the probability
that his probation might be revoked, Lee’s disregard for the conditions of his bail
may have been interpreted by the judge as a general nonchalance toward court
orders. Another recipient of a $1-million bond was a Nebraska man who was
believed to have raped women at several college campuses. When setting the high
bond, the judge acknowledged that the defendant posed a flight risk, in part
because he had no ties to the area (i.e., family or job; [Bond set for campus rape
suspect, 1997]). One of the highest bail amounts in a relatively petty case, however,
was $3 million for Sterling Crumblin of New Jersey (McHugh, 2000). Why was his
bail so high? It was not because the judge who imposed bail was a “hanging
judge,” as the same judge set bail at $750,000 for an accused murderer. It was not
to protect the community since his charges were relatively minor, some drug
charges and theft. From the court’s point of view, Crumblin had committed an
egregious error by skipping bail several times before, making him a severe flight
risk. All three cases illustrate how high bond amounts may be used selectively to
raise the costs for those defendants felt by the court to represent a risk of becoming
absconders. This use of high bail bonds is not without its drawbacks. As discussed
later in this chapter, bail is sometimes used in a biased manner to punish people
rather than ensure that they return for trial.
Although no defendant has the right to bail, those accused of capital offenses
are less likely to be granted bail because of their increased flight risk. Indeed, it
would be difficult to place any price on a defendant’s life (or his freedom in the
event of a life sentence). We saw this in the O. J. Simpson, Unabomber, and Timo-
thy McVeigh cases; no amount of money or collateral could have purchased their
freedom. This does not mean that accused murderers cannot be granted bail. It sim-
ply means that they need not be granted bail. In one rare case, a California woman
who had already been convicted of second-degree murder was allowed to stay out
on bail pending her sentencing hearing, despite complaints from the prosecutor
that witnesses in the case feared retaliation (Convicted killer released pending sen-
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tence, 1995).3 In another case, involving a juvenile, a young man was allowed to
remain out on bail pending his sentencing hearing for two murders that occurred
during a robbery. After sentencing him, however, the judge revoked his bail and
ordered him incarcerated even though he was appealing the decision (Davis, 1998).
In both cases, the judges felt that the low flight risk posed by the individuals justi-
fied allowing them to remain free on bail. However, when the circumstances
changed, both judges revoked the bail and returned the defendants to custody. That
either individual received bail in the first place was rather unusual, as those
accused of murder generally have high bail amounts and may also have to submit
to other conditions, such as being required to wear an electronic anklet to monitor
his or her whereabouts (e.g., to enforce conditions such as curfew or house arrest).
The general thought is that those who have been convicted of murder have little to
lose by fleeing because the sentences they face are so harsh.
Defendants who are believed by the court to represent a danger to the com-
munity or to the safety of any other person (e.g., a victim or witness) may be sub-
jected to preventative detention. This alternative to release means that the
accused will be held until trial or until the court feels the person is no longer a
threat to others. In other words, a person can be denied bail when there is little evi-
dence that he or she will flee the jurisdiction but there are indicators that he or she
poses a threat to others. Preventative detention was ruled constitutional by the U.S.
Supreme Court in the 1987 case, United States v. Salerno. In that case, Salerno and
a co-defendant had been held without bail before trial because it was felt that they
posed a danger to the community on the basis of their leadership positions in an
organized crime “family” as well as allegations that they had used violent means to
cover up their past criminal activities. Many states now include provisions for
denying bail to those who pose a significant risk to the public or to specific individ-
uals (e.g., victims or witnesses). This does not mean that bail has been transformed
from a method to ensure a defendant’s appearance at trial into a mechanism to pro-
tect the community; instead, protection of the public is one factor that can be used
to increase bail amounts or deny it altogether.
Preventative detention can be utilized with nonviolent as well as violent
offenses. In one North Carolina case, a woman who was accused of harboring a
fugitive (she helped hide a suspect in a botched robbery-murder) was ordered to be
held without bail (Cops Say Woman Hid Standoff Suspect, 1998); the fact that the
fugitive was still at large probably played a significant role in the court’s decision
to deny her bail. Most preventative detention cases involve serious crimes, in par-
ticular those with significant harm to another person. In general, only about 6 per-
cent of defendants are denied bail, but the majority (61 percent) of murder
defendants are denied bail (Hart and Reaves, 1999).
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HISTORY OF BAIL
Bail has been around for quite a while and has its roots in the common law system
in England. It began as a way to release defendants before their trials, in part
because sheriffs hoped to avoid the responsibility associated with detaining prison-
ers. Maintaining prisoners was more than simply a costly annoyance; it was also a
potentially fatal obligation. Sheriffs were hanged if their charges were able to escape
from the often poorly constructed jail facilities (Holmes, 1881, pp. 249–50). This
and other unfortunate realities formed the impetus for sheriffs to push for the
release of defendants.
In addition to problems facing sheriffs, the court system itself needed a
mechanism to free defendants who awaited trial. Up until the early 1900s, trials
were conducted by justices who traveled from jurisdiction to jurisdiction to con-
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272 “You Ring, We Spring”: The Role of Bail in the Court System
This 1692 handwritten request for bail was drafted by several accused witches, both male and female,
who had already been incarcerated “many months” at the Ipswich jail. At the beginning of the peti-
tion, the accused witches state their innocence, then ask to “be released out of prison for the present
upon Bayle to answer what we are charged with in the Spring. For we are not in this unwilling nor
afrayd to abide the tryall before any Judicature.” Obtaining “bayle” was important to the defendants
because they were all “weake and infirme at the best” and felt they would “perish with cold” in the
freezing Massachusetts winter while awaiting trial, which would not take place until the following
spring. One can see the importance of bail, especially in circumstances where semi-annual court days
meant waiting long periods in unheated prisons with inadequate food, water, and supplies. In fact,
these defendants wrote that they were “all most distroyed with soe long an imprisonment,” indicating
that the conditions of their confinement left something to be desired. SOURCE: Library of Congress,
Manuscript Division, LC-MSS-12021-1, John Davis Batchelder Autograph Collection.
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duct trials. Accused persons, then, could expect unusually long waits between
arrest and trial. Something had to be done to allow defendants to secure their own
releases during these lengthy interims. Because the conditions of confinement
were often quite harsh (e.g., lack of sanitation and heat), it was all the more impor-
tant for the accused to secure release. Some individuals accused of witchcraft dur-
ing the Salem witch trials, for example, hoped to use bail as a way to escape the
terrible conditions of their confinement.
The original bail system consisted of the accused’s friends or family coming
forward to assure that the accused would appear for trial: “Indeed, in its strict sense,
the word ‘bail’ is used to describe the person who agrees to act as surety for the
accused . . . and becomes responsible for his later appearance in court” (Williams,
n.d., p. 1). This was no light duty; if the accused was not present for trial, the
accused’s sureties could be punished in the same manner as were sheriffs of the day
or at least fined substantially (Holmes, 1881, pp. 249–250). Oliver Wendell Holmes
(1881, p. 248) noted that the common law bail system was linked to an ancient prac-
tice in which accused individuals submitted actual hostages to be held until their
return. The hostages were killed if the orders to appear for trial were disobeyed.
Not all defendants were eligible for bail under common law, including those
accused of crimes such as treason, murder, and arson (Blackstone, 1962, p. 353).
Sometimes, the strength of the evidence played a role in whether defendants could
receive bail. In manslaughter cases, for example, the accused was not eligible for
bail if he was “clearly the slayer,” but could receive bail if he was only “barely sus-
pected” of the crime (Blackstone, 1962, pp. 353–354).
Over time, the bail system evolved from one in which advocates agreed to
assume the burdensome duty of ensuring the accused’s return for trial into a system
in which the accused’s sureties deposited a specified sum of money or property
with the court. It was felt that the bailee’s connections to his sureties would prevent
him from absconding and that the sureties’ risk of losing their property would
motivate them to adequately supervise the accused while he or she was out on bail
(Williams, n.d., p. 3). No longer were the sureties bound “body for body” to the
accused bailee (i.e., they might lose their property, but could no longer lose their
lives). This cleared the path for professional bondsagents, who have only financial
interests in the accused, to enter the bail process. The development of professional
bondsagents has been traced to colonial America, because defendants there were
unable to rely on family and friends to bail them out (Chamberlin, 1998), possibly
because friends and family may have remained in England, leaving accused indi-
viduals to find other ways of securing their release before trial. The bail system,
then, has undergone a great deal of change from its early roots to its current form.
The courts have not, however, substantially altered their interpretation of the
sureties’ obligations to the court, or of the sureties’ powers over their bailees. If a
bailee does not show up for trial, the surety is liable for the total amount of the bond
because he or she voluntarily assumed that obligation. When the bond is forfeited,
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the surety has the right to track down the bailee and forcefully return him or her to
court. The basis for this right rests in the view that the bailee was transferred into the
custody of the surety when he or she was released from jail. The surety, therefore, is
a sort of metaphysical or abstract jailer, who can recommit the accused whenever it
becomes necessary to do so. This view was explained in further detail by the U.S.
Supreme Court in Taylor v. Taintor (1872):
When bail is given, the principal is regarded as delivered to the custody of his sureties. Their
dominion is a continuance of the original imprisonment. Whenever they choose to do so,
they may seize him and deliver him up in their discharge, and if that cannot be done at once,
they may imprison him until it can be done. They may exercise their rights in person or by
agent. They may pursue him into another state; may arrest him on the Sabbath; and if
necessary, may break and enter his house for that purpose. The seizure is not made by virtue
of new process. None is needed. It is likened to the rearrest, by the sheriff, of an escaping
prisoner. (p. 371)
In some respects, a bail surety’s powers exceed those granted to law enforce-
ment personnel. Whereas jurisdictional boundaries represent difficult barriers to
law enforcement, who must rely on good public relations and extradition orders to
capture absconding suspects, a surety (or his or her agent) can easily cross even
state lines in pursuit of a bailee. Similarly, sureties may break into homes in most
jurisdictions to secure their bailees, whereas law enforcement personnel must care-
fully follow meticulously designed policies governing their uninvited entry into
homes (e.g., knock notices). Sureties are also able to circumvent search warrant
requirements if the search is part of their attempt to locate someone who failed to
honor his or her promise to return for trial.
Bail sureties’ common law “right to arrest” has been preserved by state and
federal statutes (William, n.d., p. 9). The federal Bail Reform Act of 1984, for
example, specifically empowers sureties to “arrest” their bailees and deliver them
to federal marshals who must bring them before the appropriate court (18 U.S.C.,
sec. 3149). There is no requirement that the bailee break any laws before their
sureties can “revoke” their bail and recommit them to detention, either. Remember
that in case your parents or friends ever post bail for you: They can recommit you
to jail for no reason other than the fact that they no longer wish to be responsible
for your return to court. To further assist sureties, some jurisdictions have created
bail jumping statutes as an added disincentive to those considering absconding
while out on bail. These statutes provide for the incarceration and/or fining of
defendants for the offense of jumping bail as well as their punishment for their
original crime.
Like others in the justice drama, however, bail sureties and their agents must
be careful not to overstep their bounds. Although they are granted additional pow-
ers to assist them in recovering bail skippers, they are liable if they make a mistake
or go too far in their attempts to return someone to custody. Most bail sureties leave
the task of physically tracking down and returning bail skippers to bounty hunters
or skip tracers, who perform this service for a fee, usually 10 percent of the bond
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amount. A sometimes gruff group of individuals, bounty hunters are basically an
unregulated bunch. All skip tracers can track bail jumpers, but only two states,
Indiana and Nevada, license bounty hunters (Kelley, 1997).
This lack of regulation sometimes lands skip tracers themselves in court—the
result of their efforts to track and return bail absconders. After being mistaken for a
bail absconder, one New York woman was abducted by bounty hunters and trans-
ported against her will to Alabama; although they released her and bought her a bus
ticket for the 900-mile journey back to her home as soon as they realized their mis-
take, she sued in federal court4 and received a $1-million settlement (Panel considers
bounty hunters law, 1998). In another case, a California bounty hunter was arrested
for assault with force likely to produce great bodily injury after he broke a bail skip-
per’s neck, nose, and collarbone (Thornton, 1993). Yet another skip tracer was
arrested for assault with a deadly weapon after he shot an absconder (Pierce, 1996). It
is cases such as these that have led to calls for additional oversight of bounty hunters.
TYPES OF BAIL
There are many bail systems in use across the United States. The form that is most
like the roots of our current system is fully secured bail. Under this system, the
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Types of Bail 275
ABC Bail Bonds, in Camden, New Jersey, is directly across the street from the county detention cen-
ter. The agency is open twenty-four hours a day and, for a price, will post bonds for those who meet
their screening criteria. Bail bond agencies fulfill a valuable role in criminal justice, allowing those
accused of crimes to secure their freedom before trial. Research has shown that those who are
detained before their trials are less able to assist with their own defenses. Despite this reality, about
half of inmates held in jails are unconvicted and awaiting trial. SOURCE: Courtesy of Jon’a Meyer.
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accused person deposits with the court either the full bail amount or property (e.g.,
real estate deeds) worth the full bond amount. Once this is done, the accused is
freed pending appearance at trial. If the accused does not show up for trial, he or
she forfeits the entire amount and will still have to stand trial if found. Of course,
many defendants do not have access to large sums of money, so several alternative
approaches have been developed over time.
Currently, the most common type of bail is privately secured bail or surety
bail. More than one fourth (28 percent) of defendants who are released before trial
use this mechanism (Hart and Reaves, 1999). Defendants wishing to utilize this
system of bail must contact a bail bondsagent, who, for a nonrefundable fee, posts
a bond for the full bail amount with the court. Generally, this fee is 10 percent of
the total bail amount. Most bail bondsagents also require some form of collateral
before bailing out a client. The bondsagent then takes a portion of the defendant’s
fee and purchases a bond from an insurance company who agrees to pay the full
amount if the defendant does not show up for trial. The remaining funds become
the bail bondsagent’s payment for service as an insurance broker. A few bonds-
agents do not rely on insurance companies, but they become personally responsible
for the full amount if any of their clients fails to show up for trial. Box 10.2 con-
tains a brief synopsis of a typical day in one California bondsagent’s life. The
bondsagent explains how the bail process works and mentions some of the prob-
lems he typically faces in his field.
A third type of bail is percentage bail or deposit bail. Under percentage bail,
defendants deposit with the court a percentage, generally 10 percent, of the total
bail amount. Percentage bail is the third most common form of pre-trial release,
used by 11 percent of defendants who are released (Hart and Reaves, 1999).
Defendants who show up at their hearings get their deposits back. Those who fail
to return to court lose the 10 percent deposit and are billed for the remaining 90
percent. If the absconder leaves any money or property behind, the court can file
liens and seize the forfeited amount. Defendants’ initial financial outlay for this
type of bail is similar to privately secured bail, except that the deposit is returned to
the defendant rather than going to a bondsagent as payment for his or her services.
The final form of bail is unsecured bail. This type of bail does not require
defendants to deposit any money or collateral with the courts. If the defendant does
not return to court, however, the full bail amount is forfeited and payable upon
demand. Unsecured bail is similar to a judge suspending the bond amount; the
judge first sets the bail amount and then allows the defendant to leave without pay-
ing, but liable for the full amount in the event he or she does not appear at trial.
Unlike the other three bail systems, which are implemented jurisdiction-wide,
unsecured bail may be used on a case-by-case basis within a jurisdiction. For those
defendants about whom a judge is uncertain about their likelihood of returning to
court, a bail amount can be required.
Most nonserious defendants are not required to post bail or to put up a bond.
Instead, they are released on their own recognizance (ROR), which means they
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simply promise to return to court for their hearing. According to recent government
statistics, the highest number of all pre-trial releases, 38 percent, are ROR releases
(Hart and Reaves, 1999). There is no money or collateral forfeited if the defendant
does not appear, but a warrant can be issued for his or her arrest if he or she fails to
appear. This form of release is usually used for individuals who have ties to their
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BOX 10.2
A Day in the Life of a Bondsagent
“King” Stahlman Bail Bonds never closes; the office is open twenty-four hours a day, 365 days
a year, even on holidays and when business is slow. To secure Stahlman’s services, the defen-
dant or his or her family and friends “front” ten percent of the total bail amount to Stahlman. In
exchange for this fee, Stahlman agrees to pay the court the full bail amount if the bailee fails to
appear for trial, then the bailee is released. If the bailee flees, Stahlman gets six months to “pro-
duce the fugitive” before he is held responsible for the bail. Sometimes, Stahlman sues bail
skippers to get his money back, but this is not always effective.
Most of Stahlman’s clients show up for trial after securing his services and getting out of
jail, but some do not. Regardless of whether they show up for trial, some cause Stahlman and his
staff some worry. Says Stahlman of some of his clients: “It’s amazing how you can bail some-
body out of jail and three weeks later the phone is disconnected and the co-signer is gone.”
Stahlman does not play soft with his clients. Before posting the bond, he informs all clients
that excuses for missing trial are not tolerated: “There’s only three reasons you miss a court appear-
ance . . . You’re in jail, you’re in the hospital—or you’re dead.” He also takes pictures of them in
case they skip and he has to hire a bounty hunter to track them down. He also requires some clients
to check in from time to time to keep him informed about their cases and whereabouts.
Despite his warnings and efforts to screen clients before posting bonds for them, a few
bailees do skip town. Like many other bondsagents, Stahlman employs the services of bounty
hunters to track down and return bail jumpers. Bounty hunters ultimately end up satisfying two
agencies, because their services return the defendant to trial (satisfying the court) and free the
bondsagent from paying the full bond (satisfying Stahlman). Stahlman says that bounty hunters
prefer to “call themselves skip tracers . . . [to give themselves] a little class.”
Most of the bonds Stahlman provides are moderate amounts ($5,000 to $10,000), for those
accused of assault, domestic violence, drug dealing, and residential burglaries. On occasion, he
provides larger bonds. In one case, he provided a bond for half a million dollars for a man accused
of attempted murder for shooting his nephew. Stahlman acknowledges that there is risk that some-
one will flee: “I had a bookmaker tell me the risk is so bad he wouldn’t be in this business.”
Sometimes, attorneys come by Stahlman’s office to request his services for their clients.
Status in the community might help, but does not guarantee that Stahlman will post bond for
wealthy individuals. He once turned down a doctor’s son because the son’s attorney could not
guarantee that the son would show up for trial. Those who have no resources at all, however,
should not expect charity from bondsagents, including Stahlman.
After a full, eleven-hour day, Stahlman goes home to relax and catch the evening news.
Source: Story adapted from Steinberg, 1997.
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BOX 10.3
New Mexico Court Order Setting Conditions of Release
The order depicted here allows courtroom personnel to quickly check off applicable conditions
for bail. This form is from New Mexico, but its format is not uncommon and resembles the lay-
out used in other jurisdictions. It includes three important components: (1) the type of and
amount of the bond; (2) the defendant’s promise to appear; and (3) any conditions of release. As
you read over the conditions, try to think of cases for which they would be appropriate. Would
any case merit all of the conditions?
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(Continued)
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communities (e.g., those who own their homes or whose family is local) that would
presumably keep them from fleeing the jurisdiction. Those with good reputations
in their communities (e.g., city councilpersons, church officials, and teachers) may
also be released on their own recognizance. No matter how much standing one has
in his or her community, however, this form of release is seldom used for serious
offenses like drug trafficking or murder (e.g., 18 U.S.C., sec. 3142).
In addition to posting bail, defendants may be classified as conditional
release, which means they are required to comply with certain conditions prior to
being released. See Box 10.3 (pages 278–280) for a court order form that lists
some conditions of bail release. Nearly one tenth (9 percent) of releasees are
released on conditional release (Hart and Reaves, 1999). These conditions often
involve staying away from one’s victim (e.g., in domestic violence or stalking
cases) or to seek care in a substance abuse or other treatment program. A variety
of conditions may be required, as long as they are reasonably tied to protecting the
community or ensuring that the accused shows up for trial. Sometimes, defen-
dants are ordered to comply with electronic monitoring so that their whereabouts
can be tracked. Even though their families posted bonds of $300,000, for exam-
ple, Amy Grossberg and Brian Peterson, accused of killing their newborn, were
required to wear electronic monitoring devices and observe a strict curfew (Hoff-
man, 1997).
In fact, the Grossberg-Peterson case illustrates several important issues with
respect to bail. Despite the fact that they had been charged with capital murder and
faced the death penalty if convicted, the prosecutor dropped his opposition to bail
because he felt that neither was a danger to the community. The judge allowed bail
on the basis of their character references, ties to the community, and lack of crimi-
nal records. In response to fears that they might abscond, however, the judge
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BOX 10.3 (continued)
FIGURE 10.3 Source: New Mexico Supreme Court Rules 1986, Criminal Forms, Judicial Pamphlet 9,
1990 Replacement, pp. 38–40.
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ordered them to submit to the conditions mentioned above and to surrender their
passports. The case is also interesting in that they were allowed to return to their
families’ homes in New Jersey despite facing trial in Delaware.
Another form of release is third-party custody. This form of release is most
similar to the common law system in which bail sureties assumed the responsibil-
ity for ensuring the accused’s presence at trial (except that the sureties no longer
risk death if the bailee absconds). This form of release is generally used with juve-
niles or defendants who the court fears may not return to court due to mental illness
or other issues. Under this system, a third party (e.g., a parent, family member, or
friend), promises to assure that the defendant will return for his or her hearing. This
form of release is relatively uncommon.
INFLUENCES ON BAIL BY THE COURTROOM WORK GROUP
AND OTHERS IN THE JUSTICE DRAMA
Although judges are usually responsible for actually granting bail and determining
the amount, this decision is by no means made in a vacuum. Other members of the
courtroom work group strive to affect the final decision. The prosecutor may argue
that the defendant represents a danger to the community or victim if released, or
may argue that the alleged crimes warrant a high bail amount because of the
increased flight risk associated with more severe penalties. The defense attorney,
on the other hand, will attempt to present his or her client in a favorable light, argu-
ing instead that bail should be granted and that the defendant deserves a minimal
bond, due either to indigence, lack of prior record, or mitigating personal condi-
tions (e.g., the defendant is ailing or is the main source of support for his or her
family). Research shows that judges are more likely to “side with” prosecutor’s
recommendations rather than those made by defense attorneys (Feeley, 1979, p. 67;
Wice, 1985, p. 58).
The police also have an effect on bail. In some jurisdictions, they alone set bail
in misdemeanor cases and in some felony cases. In others, they establish, through
the charges they list on arrest reports, an initial bail amount that may be paid by
defendants who wish to secure their release immediately. Those who do not pay the
initial bail or who are not granted bail at the police level are entitled to a bail hearing
before a magistrate within a specified amount of time, usually forty-eight hours. In
any case, the charges that are filed against defendants are at least initially selected
by the police and these charges are closely related to the final bail amounts.
Bondsagents deserve special mention for their influences on the bail process.
They depend on the courts for their business, and at the same time assist the courts by
allowing defendants who would ordinarily be forced to remain in jail. This is no
unimportant function, considering that more than half of all jail inmates in the United
States are awaiting trial (Perkins, Stephan, and Beck, 1995). In a very real sense,
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then, the courts and bondsagents need each other. It is quite possible that the bail sys-
tem would have undergone many more court-mandated changes had it not been for
the development of the private bond business. Instead of suing for their release under
habeas corpus actions, defendants pay a bondsagent’s fee and are released.
As discussed earlier, situational justice may play an important part in bail
decisions. Bail may be denied to particularly loathsome defendants who are charged
with only moderately severe offenses, or bail amounts may be set far above individ-
ual defendants’ means simply to prevent them from achieving release prior to their
trials (Davis, 1969, p. 10; Feeley, 1979, p. 210). This practice was common in the
southern states as a way to “penalize” blacks who challenged the dominant white
power structure (e.g., Lester, 1965). Unfortunately, the use of high bail to achieve
situational justice did not vanish with the abuses during the Civil Rights movement.
In 1989, a judge set bond at $1 million for the captain of the Exxon Valdez
(which was involved in an 11-million gallon oil spill in Prince William Sound, just
off the Alaskan coast), although the prosecutor requested only $25,000 bond and
the captain faced only misdemeanor charges of being drunk and below deck when
the accident occurred (King, 1989). The bond was reduced to $25,000 the next day,
and it has since been argued that the presence of the media on the day of the initial
hearing led the judge to set the unusually high bail, passionately comparing the
captain’s actions to the bombing of Hiroshima: “It is a misdemeanor of such a
magnitude that has probably never been equalled anywhere in this country. We
have a destruction, a man-made destruction that has not been equalled since
Hiroshima” (King, 1989). Even more recently, a judge set bail at $5 million for for-
mer savings and loan chief Charles Keating despite the prosecutor agreeing that he
could be released on his own recognizance (Granelli, 1990). In both of these cases,
and others like them, it appears that the judges simply wanted to ensure that the
defendants were unable to make bail, forcing them to get a “taste” of jail before the
bail amounts were reduced on appeal (Chambers, 1990).
Bail policies and the factors taken into consideration in setting bail have a
disproportionately heavy impact on not only poor defendants, but also defendants
of ethnic minority groups. In one study of 150,000 criminal cases in Connecticut,
researchers found that African American and Hispanic defendants had their bail set
at double the amount for white defendants. In some drug cases, minority defen-
dants had bail set at four times the amount of that as white defendants in compara-
ble cases (Ewing and Houston, 1991).
THE MANHATTAN BAIL PROJECT
No discussion of bail would be complete without mentioning the Manhattan Bail
Project, administered by the Vera Institute of Justice. The project’s goals were to
determine if those who could not meet the financial requirements for bail (i.e., they
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were granted bail but were too poor to post bond) could be depended upon to return
without putting up bail (Ares, Rankin, and Sturz, 1963, p. 71). To achieve this goal,
the program staff designed a classification scheme to help them rate the likelihood
of defendants absconding. The approach contained many of the same criteria used
by the courts in determining bail (e.g., ties to the community, presence of family
nearby, employment history, and prior record; Rubin, 1976, p. 56). To evaluate the
potential of the program, indigent defendants who met the program’s criteria were
randomly assigned to one of two groups: an experimental group (which was spon-
sored by the Vera Institute for pre-trial release) or a control group (which was not
sponsored and remained in jail between arrest and trial).
The results of the evaluation were enlightening. As expected, the project
found that, with proper screening, almost all defendants showed up for trial. This
finding was instrumental in initiating the Bail Reform Act of 1966, which declared
that defendants in federal cases should be entitled to bail whenever possible.
Although the Bail Reform Act of 1966 applies only to federal courts, state courts
tend to agree that defendants should be offered bail when it is feasible to do so
without risking the community’s safety or a failure to appear on behalf of the
accused.5 Box 10.4 demonstrates this idea by presenting the guidelines followed
by Virginia magistrates with respect to bail decisions (Virginia magistrates perform
many of the functions once completed by justices of the peace). The guidelines
also emphasize the value assigned by judges to characteristics of the offense and
the accused’s community ties as indicators of his or her likelihood of absconding.
Equally important to demonstrating the efficiency of the Vera Institute’s
screening strategy, the evaluation showed that although the defendants had been
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The Manhattan Bail Project 283
BOX 10.4
Bail Guidelines Followed by Virginia Magistrates
Bail procedures exist to enable an accused to stay out of jail and to insure that the accused will
appear for trial. Magistrates decide the terms of bail by examining certain facts about the
accused, such as the nature and circumstances of the offense charged, whether a firearm is
alleged to have been used in the offense, weight of the evidence, character of the accused, the
accused’s family ties, employment, financial resources, length of residence in the community,
involvement in education, and past record. If possible, the magistrate will release the accused on
a written promise to appear in court with or without an unsecured bail bond. If, after examination
of these facts, magistrates are not reasonably sure that the accused will appear for trial, the mag-
istrates, in their discretion, will require the execution of a bail bond with surety in a reasonable
amount and may impose such other conditions deemed reasonably necessary to insure appear-
ance at trial. The monetary sum of the bail bond can be forfeited as a penalty if the accused fails
to appear in court or violates any condition of bail (Supreme Court of Virginia, n.d.).
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randomly assigned to the pre-trial release group (i.e., there was no bias in who was
assigned to the two groups), those who were released were substantially less likely
to be convicted (59 percent of the experimental group was acquitted versus 23
percent of the control group) and if they were convicted, they were considerably
less likely to be incarcerated (21 percent of the convicted experimental group was
jailed versus 96 percent of the control group [Ares, Rankin, and Sturz, 1963,
pp. 86–87]). The evaluators concluded that being detained before trial affected
future decisions in the criminal justice system. The evaluation certainly lent some
support to the assertion that incarcerated defendants are less able to assist with
their own defenses. This reality will be covered in greater detail later in the next
section of this chapter.
“DON’T PAY MEANS YOU STAY”: PROBLEMS WITH BAIL
The bail process is not without its critics. In fact, there are a number of problems
noted with the current system, most of which are noted by commentators who feel
the bail system is an important institution. Despite their support of the process,
they still recognize that the system needs reform.
One of the most persistent criticisms of the bail process is that it discrimi-
nates against the poor (e.g., Ares, Rankin, and Sturz, 1963; Burns, 1973; Lizotte,
1978). Due to their access to funds and greater likelihood of owning property that
can be used for collateral, the rich are better able to deposit the full amount of their
bail with the court. The poor, on the other hand, are often unable to gather the funds
to post and instead must rely on private bondsagents who charge a fee for their
service. See Box 10.5 for statistics regarding whether defendants were able to
secure pre-trial release by type of attorney (publicly funded or privately secured);
these statistics tend to show that those who qualify for publicly funded attorneys
are less able to make bail when it is allowed. In cases where bail amounts are high,
the fees paid to bondsagents can be quite costly: For example, in securing his
release, Charles Keating’s family paid $30,000 cash to a bondsagent after his bail
was reduced to $300,000 (Granelli, 1990). The important distinction is that those
who post the full amount of their bail have it returned in its entirety when they
appear for trial, whereas those who rely on bondsagents are not entitled to any
refund. Keating’s family, then, stood to lose the entire $30,000 they posted. There
are countless examples of indigent defendants who cannot post even moderate
bonds, much less very high bail amounts.
It is also important to realize that bondsagents do not accept as clients everyone
who solicits their services (e.g., Professional Bondsmen of New Mexico, n.d.). Like
any other individual in the criminal justice system, bondsagents have discretion
regarding for whom they choose to issue bonds. They are unlikely, for example, to
accept defendants who have no property whatsoever, defendants who they feel might
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abscond, or those whom they dislike in any way. One bondsagent (Vigil, 1994)
explained that she usually avoids first-time felony offenders because they might get
“skittish” and leave town due to fear about the trial outcome, cases where bail is very
high because there is more money to lose if the client skips, and those charged with
violent offenses because they represent possible harm to the bondsagent or her staff.
Unlike the rich, who simply post their bonds and leave, the poor must subject them-
selves to a separate and distinct process to gain liberty before their trials.
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“Don’t Pay Means You Stay”: Problems with Bail 285
BOX 10.5
Release Prior to Trial by Type of Counsel
The following table presents statistics regarding whether defendants were able to secure pre-
trial release by type of attorney (publicly funded or privately secured). Taken together, these sta-
tistics show that those who qualify for publicly funded attorneys are less able to make bail when
it is allowed because approximately the same percentage of defendants in each category are
denied bail (meaning that the others were unable or unwilling to post bail). The table also pres-
ents statistics on the case outcomes broken out by attorney. The numbers should not surprise
you, given the findings discussed in Step 6.
Release Before Trial and Disposition of Case with a
Felony Charge, by Type of Counsel, for Convicted Jail Inmates, 1996
Type of counsel
Public Private
Release before trial*
Released 22.5% 54.5%
Without bail or bond 3.8 4.1
With bail or bond 18.7 50.4
No release 77.5 45.5
Bail or bond set 57.0 26.0
Bail or bond not set 20.5 19.5
Disposition of case
Not guilty 14.0% 20.7%
Bench trial 7.6 8.7
Jury trial 5.0 10.7
Unknown type of trial 1.4 1.3
Guilty/no contest plea 85.9 79.3
With plea bargain 53.5 48.7
Without plea bargain 32.4 30.6
*Counsel may have been appointed or hired after bail hearing.
Source: C.W. Harlow, 2000. Defense Counsel in Criminal Cases.
Washington, DC: Bureau of Justice Statistics, p. 7.
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Further, some people have decried the remarkable powers that bondsagents
have over their clients, as previously discussed. These powers stem from the fact
that the process is essentially a civil rather than criminal one. Remember, if the
defendant fails to appear at trial, the bondsagent forfeits the 90 percent he or she
posted or the insurance bond that he or she purchased. To prepare for that possibil-
ity, they have clients sign a release form authorizing the bondsagent to send skip
tracers after them to locate and bring them back before the court. Skip tracers,
given their unique status in the criminal justice system (i.e. that they are not gov-
ernment agents, but they have significant arrest powers), are not bound by the same
due process concerns as law enforcement officers.
A few critics point to the corruption that the bail process seems to engender.
Judges have been known to set very high bail in exchange for kickbacks from
bondsagents. This can happen because bondsagents get a percentage of the bail as
commission, so higher bonds mean higher fees. Another form of corruption hap-
pens when bondsagents bribe officials in order to be able to solicit clients inside the
jails. Although it is not necessarily corruption, bail bondsagent companies and rep-
resentatives sometimes lobby against the use of ROR (release on own recogni-
zance) because they make no money off defendants who are released on ROR.
Some scholars argue that allowing bondsagents to get involved in the bail
system taints its true purpose. As originally conceived, bail was to ensure the
defendant’s appearance at trial. When bondsagents bail their clients out of jail,
however, the risk is transferred from the defendant to the bondsagent. The accused
does not stand to lose much if he or she fails to appear, and under current law,
bondsagents are no longer punished (except for forfeiture of the bond) if the bailee
fails to appear. And, some critics argue that, because of reliance on insurance com-
panies, even the bondsagents do not stand to lose much. The only thing most bonds-
agents risk is the cancellation of their insurance policies. This, too, runs counter to
the purpose of bail (which is to ensure the defendant appears at trial) because nei-
ther the accused nor the bondsagent incurs much risk.
Some commentators have noted that forfeited bonds are not always collected
when defendants fail to appear. Sometimes the courts do not wish to irritate the
bondsagents on whom they depend to ease jail overcrowding. These critics ask
why such a perverted system is maintained, which allow bonds agents to retain
their fee and the bond, even when their clients do not show up.
A final critique of the bail system is that some defendants commit crimes due
to bail; that is, they commit crimes to obtain the funds to pay off their bail or bonds-
agent fees. This is not to be confused with new crimes committed while out on bail,
which is an argument against allowing bail at all. Instead, this critique centers on
the supposition that forcing defendants to buy their way out of jail leads them to
commit crimes in order to secure the funds needed to do so. This is similar to the
Florida case in which a probationer was robbing banks in order to pay his monthly
probation fees (Man robs bank to pay probation, 1997). Although these incidents
seem to attract media attention, this type of case is rare.
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WHEN BAIL IS NOT MET: THE INFLUENCE
OF PRE-TRIAL DETENTION
When defendants cannot meet the bail assigned to their cases, they must remain in
detention until they obtain the necessary funds or until trial, whichever comes first.
Those for whom bail is denied, of course, must wait out their trials behind bars.
Pre-trial detention has been shown to have many negative effects on defendants, as
illustrated by the Manhattan Bail Project and other research.
First, although pre-trial detainees are presumed innocent in theory, they are
mixed in with offenders sentenced to jail for their crimes. Pre-trial detainees are
subjected to the same conditions of incarceration as other inmates, including the
sometimes awesome loss of privacy and dignity, and isolation from family and
loved ones. The psychological effects of incarceration cannot be overestimated.
Prisoners have been shown to experience increased levels of stress due to the
uncertainty added into their lives and the inability to establish adequate sleep pat-
terns. Apprehension, tension, frustration, feelings of isolation, and fear are likely to
befall the inmate (e.g., Boudouris and Brady, 1980; New York State Defenders
Association, 1985; Wojda, 1991). Worry about physical predation may also affect
inmates of both genders. Although these fears are probably exaggerated by the
media, men are still more likely to be raped in jail than in the free world (Cotton
and Groth, 1982).
Further, pre-trial detainees can suffer the stigmas of incarceration that are
normally reserved for convicted offenders. They may lose their jobs because they
miss days at work, especially when one considers that pre-trial detainees are likely
to be employed in secondary sector jobs that depend on the defendant’s presence at
work, such as waiters and waitresses, hair stylists, and other service-oriented jobs.
A number of these employers rely on a “three strikes and you’re out” approach;
those who miss three days of work are terminated. Those employed in secondary
sector jobs are also unlikely to have vacation time they can use while in jail.
Pre-trial detainees can also lose their families and friends because of their
incarceration. Spouses may need to move in with other family members or friends
for financial and other support, children sometimes must be transferred to the tem-
porary custody of others, and friendships are difficult to attend to while defendants
are in jail awaiting trial. Some family and friends may not recognize that an accused
defendant is not necessarily guilty, and so may shun even those who have not yet
been tried. In reality, the mere bringing of charges against an individual is enough
to raise the suspicions of many family members and friends.
Financial debts, including housing rentals, utility bills, and credit card pay-
ments, continue to accrue while defendants await their trials (Knowles and Prewitt,
1969, p. 72). Sometimes, defendants are released only to find that they have lost
their housing due to nonpayment of rent, their utilities have been turned off,
their credit cards canceled, or their credit history ruined by only a short pre-trial
detention.
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Finally, and possibly most important, research shows that defendants who are
held before their trials are less able to assist in their own defense. They cannot seek
out witnesses or meet freely with their attorneys (Knowles and Prewitt, 1969, p. 72).
Because they are held in jail, they are unable to meet with prosecutors to negotiate
plea bargains or other reductions in the charges they face.
Persons detained before trial are also more likely to be further processed and
convicted, even when other factors are controlled (Albonetti, 1986, 1991; Ares,
Rankin, and Sturz, 1963; Ebbesen and Konečni, 1981; Holmes and Daudistel,
1984; Lizotte, 1978; Uhlman, 1979, pp. 90–92; Wheeler and Hissong, 1988). They
are also more likely to waive their right to trial and enter a guilty plea, especially if
the crimes with which they are charged will result in probation or a short jail sen-
tence (Feeley, 1979, p. 134; Knowles and Prewitt, 1969, p. 72). The same research
shows that sentences imposed on pre-trial detainees are harsher than those imposed
on defendants who were released (e.g., Ares, Rankin, and Sturz, 1963). Because
we also know that the bail amount is tied to likelihood of release before trial (i.e.,
that bailees’ bonds are three times lower than those for pre-trial detainees; Hart and
Reaves, 1999), this points to an area where significant reform is necessary.
To compound matters, pre-trial detainees often appear at their trials in deten-
tion center issued jumpsuits, and shackled to other prisoners. Men may be
unshaven, and defendants of both genders may not be able to create a favorable
impression due to exhaustion from lack of sleep or anxiety. Defendants’ appear-
ances have been linked to negative impacts on judges, and especially on juries
(Knowles and Prewitt, 1969; Rubin, 1976; Uhlman, 1979, p. 92).
CONCLUSION
From its roots as a system in which bail sureties agreed to take the accused’s place
if the bailee absconded, our current bail system has evolved into a popular form of
release for those accused of committing crimes. Those who cannot meet bail them-
selves can call on others, including professional bondsagents (for a fee), to help
them do so. Many of the problems noted about the bail system are tied to its poten-
tially discriminatory structure, but reforms have been implemented in some juris-
dictions to assuage those difficulties. Due in part to the symbiotic (i.e., mutually
beneficial) relationship between bondsagents and the courts, one can safely con-
clude that the bail system can withstand even zealous attempts to eradicate it.
The next chapter will explain the history and types of modern plea bargains.
We will learn about how plea bargains are initiated and processed, and how they
affect justice, the actors in the justice drama, and the public.
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D I S C U S S I O N Q U E S T I O N S
1. Look at the two sets of guidelines in Sidebar Box 10.1. What are the differences between the 1966
and 1994 guidelines? Why do you think the guidelines changed? What criteria do you feel should
be included that are not on either of the two lists?
2. Imagine that you are a defendant in colonial America. In addition to the possible absence of loved
ones and family who could post bonds with the court, what other hardships would exist for you if
you wanted to be released before trial?
3. Should all accused persons be allowed to post bail? Why or why not?
4. Consider the plight of people awaiting trial who are not granted or cannot make bail. Jails often
house a volatile mix of pre-trial detainees: people convicted of crimes and sentenced to a year or
less of incarceration; and people convicted of serious, violent crimes and sentenced to state prison
who are held in jail pending transfer to state prisons. Often these groups of inmates are mixed
together, rather than separated. Is this fair to people who have not yet been tried? What would be
some problems that could arise if you were arrested for nonpayment of parking tickets and put in
jail along with hardened criminals?
5. Make a list of all the ways that pre-trial detention negatively affects a defendant’s legal prognosis
(i.e., the final outcome in the defendant’s case)? Why does pre-trial detention have this effect?
6. How might pre-trial detention help explain the disproportionate conviction and incarceration of
poor and minority defendants?
7. Think about what you learned about bounty hunters and skip tracers. Why do they have fewer
Fourth Amendment constraints on their power than police officers? What problems does this pre-
sent? What reforms would you suggest to eliminate these problems?
N O T E S
1. The Eighth Amendment to the U.S. Constitution reads: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.”
2. Thanks to an anonymous reviewer who suggested this analogy.
3. After the prosecutor filed a motion asking the judge to reconsider the release, the judge ordered
her into jail until the sentencing hearing. The judge said he had not yet seen the police report in her
case or her arrest record, which detailed a prior offense for assault with a deadly weapon (Mur-
derer free on bail but not for long, 1995).
4. She sued the skip tracers, the bondsman that hired them, several officers in New York and New
Jersey who failed to order her release, and the city of New York.
5. Not showing up for trial can also net you a charge of a separate crime, Failure to Appear (FTA).
R E F E R E N C E S
Albonetti, C.A. (1986). Criminality, prosecutorial screening, and uncertainty: Toward a theory of dis-
cretionary decision making in felony case processings. Criminology, 24: 623–644.
Albonetti, C.A. (1991). An integration of theories to explain judicial discretion. Social Problems,
38: 247–66.
Ares, C., Rankin, A., and Sturz, H. (1963). The Manhattan bail project: An interim report on the use
of pretrial parole. New York University Law Review, 39: 67–92.
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Blackstone, W. (1962). Commentaries on the Laws of England: Of Public Wrongs. Adapted by R.M.
Kerr. Boston: Beacon Press.
Bond set for campus rape suspect. (1997, May 19). Associated Press Wire.
Boudouris, J., and Brady, H.J. (1980). Attitudes of prison inmates. Journal of Offender Counseling
Services and Rehabilitation, 5: 67–77.
Burns, H. (1973). Black people and the tyranny of American law. Annals of the American Academy of
Political and Social Science, 407: 156–166.
Chamberlin, J.A. (1998). Bounty hunters: Can the criminal justice system live without them? Univer-
sity of Illinois Law Review, 1998: 1175–1205.
Chambers, M. (1990, November 12). When judges set high bail indignantly. National Law Journal, p. 13.
Convicted killer released pending sentencing. (1995, December 10). San Diego Union-Tribune Wire.
Cops say woman hid standoff suspect. (1998, May 1). Associated Press Wire.
Cotton, D.J., and Groth, A.N. (1982). Inmate rape: Prevention and intervention. Journal of Prison
and Jail Health, 2: 47–57.
Davis, G.W. (1998, March 31). No bail for teen in cab killings: Risk of flight still great during appeal,
judge says. Beacon Journal Wire.
Davis, K.C. (1969). Discretionary Justice: A Preliminary Inquiry. Baton Rouge: Louisiana State Uni-
versity Press.
Ebbesen, E.B., and Konečni, V.J. (1981). The process of sentencing adult felons: A causal analysis of
judicial decisions. In B. Sales (Ed.), The Trial Process. New York: Plenum.
Ewing, J., and Houston, B. (1991, June 17). Some judges punish people without benefit of trial. Hart-
ford Courant, p. A1.
Feeley, M.M. (1979). The Process Is the Punishment: Handling Cases in a Lower Criminal Court.
New York: Russell Sage Foundation.
Granelli, J.S. (1990, October 19). Keating freed after U.S. judge slashes bail. Los Angeles Times Wire.
Harlow, C.W. (2000). Defense Counsel in Criminal Cases. Washington, DC: Bureau of Justice
Statistics.
Harmsworth, E. (1996). Bail and detention: An assessment and critique of the federal and Massachu-
setts systems. New England Journal on Criminal and Civil Confinement, 22: 213–290.
Hart, B.A., and Reaves, T.C. (1999). Felony Defendants in Large Urban Counties, 1996. Washington,
DC: Bureau of Justice Statistics.
Hoffman, J. (1997, January 22). Bail granted to teen-agers in baby death. New York Times Wire.
Holmes, O.W. (1881). The Common Law. Boston: Little, Brown.
Holmes, M.D., and Daudistel, H.C. (1984). Ethnicity and justice in the Southwest: The sentencing of
Anglo, Black, and Mexican origin defendants. Social Science Quarterly, 65: 265–277.
Kelley, M. (1997, September 3). Killings by bounty hunters stir an outcry: Calls for regulation rise
after 2 die in tragic error. San Diego Union Tribune Wire.
King, J. (1989, April 5). Spill tanker captain held on one million dollars bail. Reuters Wire.
Knowles, L.L., and Prewitt, K. (1969). Institutional Racism in America. Englewood Cliffs, NJ: Pren-
tice Hall.
Lester, A. (1965). Justice in the American South. London: Amnesty International.
Lizotte, A.J. (1978). Extra-legal factors in Chicago’s criminal courts: Testing the conflict model of
criminal justice. Social Problems, 25: 564–80.
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Man robs banks to pay probation. (1997, June 14). Associated Press Wire.
McHugh, M. (2000, November 14). Judge sets $3 million bail for drug suspect. Newark Star-Ledger,
p. 47.
Murderer free on bail but not for long. (1995, December 12). San Diego Union-Tribune Wire.
New York State Defenders Association. (1985). What Prisons Do to People. Albany, NY: New York
State Defenders Association.
Panel considers bounty hunters law. (1998, March 12). Associated Press Wire.
Perkins, C.A., Stephan, J.J., and Beck, A.J. (1995). Jails and Jail Inmates 1993–94: Census of Jails
and Annual Survey of Jails. Washington, DC: Bureau of Justice Statistics.
Pierce, E. (1996, June 9). Shooting leads to jail for one bounty hunter. San Diego Union-Tribune
Wire.
Professional Bondsmen of New Mexico (n.d.) Bail Agent Code of Ethics. Albuquerque: Professional
Bondsmen of New Mexico.
Rocker Tommy Lee jailed for abuse. (1998, February 25). Associated Press Wire.
Rubin, T.H. (1976). The Courts: Fulcrum of the Justice System. Pacific Palisades, CA: Goodyear.
Steinberg, J. (1997, February 28). Longtime “king” of bail bonds keeps busy courting the public. San
Diego Union-Tribune Wire.
Supreme Court of Virginia. (n.d.). The Office of the Magistrate: Virginia Information Pamphlet. Rich-
mond, VA: Supreme Court of Virginia.
Taylor v. Taintor, 83 U.S. 366 (1872).
Thornton, K. (1993, June 27). Bounty hunter is charged with beating fugitive. San Diego Union-
Tribune Wire.
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ton, MA: Lexington Books.
United States v. Salerno, 481 U.S. 739 (1987).
Vigil, S. (1994). Personal Interview with author.
Wheeler, G.A., and Hissong, R.V. (1988). A survival time analysis of criminal sanctions for misde-
meanor offenders: A case for alternatives to incarceration. Evaluation Review, 12: 510–527.
Wice, P.B. (1985). Chaos in the Courthouse: The Inner Workings of the Urban Criminal Courts. New
York: Praeger.
Williams, G. (n.d.) The Bondsman’s Right to Arrest. Davenport, IA: Crown.
Wojda, G.L. (1991). Behind Bars. Laurel, MD: American Correctional Association.
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Step 11
Plea Bargaining
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❖
In the last chapter, we examined bail and its use to release defendants before trial.
We also examined how bail (or the inability to make bail) can affect individual
defendants’ access to justice. In this chapter, we move to the next step, plea bar-
gaining. Technically, plea-bargain negotiations may occur at any stage in the trial
process, and they often follow pre-trial motions aimed at discovery (e.g., requests
for statements made by the defendant to police), dismissal of charges, or exclusion
of evidence. Once the rulings have been issued on pre-trial motions, the attorneys
for the two sides are better able to assess their cases and their possible need to
engage in plea bargaining.
Plea bargains are estimated to occur in some 90 percent of criminal cases in
the United States (e.g., Miller, McDonald and Cramer, 1978, p. 17). In 1996, 91 per-
cent of all felony convictions in the state courts were disposed of through guilty
pleas (Brown, Langan, and Levin, 1999, p. 7; Maguire and Pastore, 1999, p. 432,
Table 5.42). Although not all guilty pleas are the result of formal bargains, many
are, and those that do not follow negotiations often involve some sort of leniency
expected by the defense.
Despite their frequent use, plea bargains are one of the most controversial
issues in the justice system. The public abhors them, but the justice system appears
to embrace them. Editorial after editorial condemns their very existence, but plea
bargains are still firmly ensconced in American justice. Plea bargains are defined
by the public as a “soft on crime” policy or proof of laziness by prosecutors, by
members of the justice system as a way to deal with crushing workloads and vague
concepts of justice and fairness, and by defendants as a way to fashion more palat-
able sanctions for their actions. As defined by Black’s Law Dictionary, the leading
law dictionary, plea bargaining is:
The process whereby the accused and the prosecutor in a criminal case work out a mutually
satisfactory disposition of the case subject to court approval. It usually involves the
defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a
multi-count indictment in return for a lighter sentence than that possible for the graver charge
(Black, 1991, p. 798).
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This definition illustrates the process in formal plea bargaining, which may involve
detailed negotiations in which both sides in a case haggle back and forth, or the bar-
gains may involve offers that are simply accepted or rejected by the other side. For-
mal bargains, called explicit plea bargains, are those in which some concession has
been granted to the defendant in exchange for his or her agreement to plead guilty
(Weninger, 1987, p. 280). This type of bargain will be discussed at length in this
chapter. The second category of negotiations, implicit plea bargains, involve no
direct promises of leniency. Although there is no “explicit” agreement entered into
by the prosecution, there is still pressure on the defendant to plead guilty in
exchange for ambiguous hopes of leniency (Guidorizzi, 1998, p. 756).
The United States is not alone in its use of plea bargaining. Many countries
have some form of “abbreviated” approach for routine cases, including Scandi-
navia, West Germany, and several other European countries (Felstiner, 1978, p. 309).
Similar to the United States, some 85 percent of British defendants plead guilty,
and “informal plea negotiation” is common in England (Baldwin and McConville,
1978, pp. 287, 292).
TYPES OF PLEA BARGAINS
There are three main categories of plea bargains. Each type involves sentence
reductions, but those reductions are achieved in very different ways. One common
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Types of Plea Bargains 293
A group of federal attorneys discuss their cases. It is in informal sessions such as these that plea bar-
gains are wrought. Sometimes the product of hallway encounters, plea bargains are typically initiated
by defense attorneys and involve some sort of concession by the prosecutor in exchange for a guilty
plea. Though plea bargains are subject to judicial review, they are seldom rejected, meaning that
American justice depends heavily on negotiation between attorneys. SOURCE: Library of Congress,
Prints & Photographs Division, FSA-OWI Collection, LC-USW3-030791-D DLC, Marjory Collins,
photographer.
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type is charge bargaining, in which a defendant pleads guilty in exchange for a
reduction in the severity of charges he or she faces. In a fairly typical scheme, for
example, a Rhode Island defendant faced with felony charges of receiving stolen
goods was allowed to avoid a felony proceeding by pleading guilty to misde-
meanor charges (Reputed mobster gets probation, 1999). Similarly, cases in which
defendants are allowed to plead guilty to necessarily included offenses (e.g., aggra-
vated assault) rather than attempted murder charges are examples of charge bar-
gains—the actual charges are decreased, thereby reducing the maximum sentence
that may be imposed in the case.
Another common type of plea negotiation is sentence bargaining. Those
who engage in this type of plea negotiations are promised lighter or alternative sanc-
tions in exchange for pleading guilty (e.g., Guidorizzi, 1998, p. 756; Weninger,
1987, p. 280). Sentence bargains are relatively common in homicide cases where
defendants will plead guilty to avoid the death penalty or life without parole sen-
tences.1 One defendant who was on trial for murder and other serious charges
avoided the death penalty when he pleaded guilty in exchange for receiving six
consecutive life terms (Ziegler, 1996). A New Mexico woman did the same when
she pleaded guilty in exchange for two life terms instead of the death penalty (Her-
rera, 1997). Sentence bargains are also employed in cases less serious than homi-
cide. When a 1997 California defendant pleaded guilty to a felony drug charge in
exchange for a promise that he would serve no more than three years in prison
(Drug rap dropped, 1997), he was engaging in sentence bargaining. Even the lower
courts have their share of sentence bargains, where defendants agree to plead
guilty in exchange for having a few months shaved off of their jail terms, a lower
fine, or fewer points added to their driving records (Meyer and Jesilow, 1997,
p. 111). Sometimes, prosecutors agree not to make a sentence recommendation,
thus leaving the sentence up to the judge (e.g., Santobello v. New York, 1971); the
assumption is that the sentencing judge will sentence more leniently than he or she
would have in the absence of a guilty plea. However, with sentence recommenda-
tion bargains, the defendant has no guarantee that the judge will accept the prose-
cutor’s recommendation for a reduced sentence. Therefore, this type of plea
bargain is less attractive to defendants. Defendants are also not guaranteed legal
relief if their expectations of leniency in exchange for a plea are not met (e.g.,
Komitee, 1995). In sentence bargaining, it is the sentence itself that is transformed,
resulting in a reduced penalty.
The final type of plea negotiation is count bargaining, in which the number of
charges is reduced. Instead of being charged with three separate counts of drunk driv-
ing in one night, for example, one California defendant was allowed to plead guilty to
just one (Meyer, 1993). Similarly, some defendants will have one or more charges
dropped in exchange for pleading guilty to the remaining offenses. Count bargaining
is less common than the other two forms (Weninger, 1987, p. 280), in part because it
is limited to those offenders who amass multiple charges. Although it simplifies mat-
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ters, a defendant’s charges need not be identical for count bargaining to occur. Any
charge(s) may be dropped by the prosecutor in exchange for a guilty plea on the
remaining charge(s). In count bargaining, the actual number of charges is decreased,
thereby reducing the maximum sentence that may be imposed in the case.
The defense, of course, hopes that the end result of any plea bargain is a
reduced penalty. In general, scholars have noted that those who plead guilty
receive more lenient sentences than their counterparts who go to trial (Acevedo,
1995, p. 997; Guidorizzi, 1998, p. 775; Heumann, 1978; Weninger, 1987, p. 295).
According to government statistics, the average sentence following a felony con-
viction by jury trial was 150 months in 1996, compared to only 54 months for
defendants who pled guilty (Levin, Langan, and Brown, 2000, p. 39, see Box 11.1
for the sentences broken down by offense). Sometimes, lenient penalties are
reserved for those who plead guilty; informal courthouse norms in one jurisdiction
stated that only defendants who had pled guilty could be eligible for probation,
meaning that those who insisted on their day in court often served their day in jail,
too (Neubauer, 1974, p. 240).
Because of the greater interest accorded to them by the public, murderers
deserve special mention. Murderers convicted by juries are more likely than those
who plead guilty to receive death sentences or life sentences compared to more
lenient sentences. In 1996, 5 percent of jury trials for murder ended with death sen-
tences and an additional 43 percent ended with life sentences, whereas only 3 per-
cent of those who pled guilty received death sentences and only 14 percent got life
terms; the remaining 86 percent of defendants who pled guilty received less serious
penalties (Brown, Langan, and Levin, 1999, p. 8).
Ironically, the sentences imposed in individual plea bargains sometimes dif-
fer little from what defendants would receive after trial, especially when one con-
siders that the statistical differences mentioned above may be attributable to
defendants refusing bargains that call for harsh penalties but receiving those severe
sentences after conviction (this would inflate the severity of sentences imposed
after trial when compared with those willingly accepted by defendants who plea
bargained). In count bargains, the dropping of charges may not reduce the sentence
at all; the prosecution gives up “very little” since most sentences are served con-
currently (Neubauer, 1974, p. 203). Receiving concurrent terms means that mul-
tiple sentences are served at the same time, so the offender spends only the longest
term in detention; consecutive terms, on the other hand, means that the offender
must serve the terms one after the other so that when one term is completed the
next begins. Receiving a jail term of six months, then, requires the same amount of
time behind bars as three concurrent six-month terms. The reality of concurrent
sentences led one prosecutor to comment, after agreeing to dismiss several misde-
meanor counts against an accused sex offender, “If we had gone to trial and he had
been convicted of all the charges he would have faced 64 years in prison. He still
faces 64 years in prison” (Callahan, 1996, p. B1).
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BOX 11.1
Average Felony Sentence Lengths
As you look over the following table, compare the sentences imposed for guilty pleas to other
types of “convictions.” Generally, which type of conviction yields the highest average
sentence? For which offense(s) is the difference between guilty pleas and bench or jury trials
the greatest? For which offenses is the difference the least? Are there any offenses for which
pleading guilty yields a higher average sentence than either bench or jury trial? What factors
do you feel could account for the differences shown in this table?
Average Felony Sentence Length in State Courts, by the
Type of Conviction, Type of Sentence Imposed, and Offense, 1996
Maximum sentence length (in months) for convictions by —
Trial
Most serious
Total Total Trial Jury Bench Guilty plea
conviction offense Mean Median Mean Median Mean Median Mean Median Mean Median
SENTENCES TO PRISON
All offenses 61 mo 36 mo 107 mo 60 mo 150 mo 120 mo 70 mo 48 mo 54 mo 36 mo
Violent offenses 104 mo 68 mo 170 mo 139 mo 205 mo 180 mo 116 mo 84 mo 86 mo 60 mo
Murdera 237 300 314 720 332 ** 258 240 191 182
Sexual assaultb 117 72 170 120 215 180 83 60 100 70
Robbery 102 72 158 120 180 144 128 120 90 70
Aggravated assault 70 48 118 72 144 96 89 60 59 37
Other violentc 57 36 92 60 124 72 51 36 48 36
Property offenses 48 mo 36 mo 69 mo 48 mo 93 mo 66 mo 58 mo 48 mo 46 mo 36 mo
Burglary 61 48 92 60 112 84 74 60 57 46
Larcenyd 39 29 50 36 65 48 47 36 38 25
Fraude 39 29 46 32 65 60 46 33 39 28
Drug offenses 50 mo 36 mo 78 mo 48 mo 100 mo 70 mo 61 mo 43 mo 46 mo 36 mo
Possession 36 24 49 36 79 48 35 24 35 24
Trafficking 55 36 87 60 106 72 72 60 50 36
Weapons offenses 40 mo 24 mo 66 mo 40 mo 91 mo 60 mo 46 mo 36 mo 36 mo 24 mo
Other offensesf 41 mo 36 mo 51 mo 36 mo 83 mo 48 mo 34 mo 24 mo 40 mo 36 mo
SENTENCES TO JAIL
All offenses 6 mo 6 mo 8 mo 6 mo 7 mo 6 mo 8 mo 6 mo 6 mo 6 mo
Violent offenses 7 mo 6 mo 9 mo 6 mo 9 mo 6 mo 10 mo 9 mo 7 mo 6 mo
Murdera 9 12 9 6 9 6 8 9 9 12
Sexual assaultb 8 6 11 12 12 12 10 12 7 6
Robbery 10 9 14 12 10 12 17 12 10 9
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Maximum sentence length (in months) for convictions by —
Trial
Most serious
Total Total Trial Jury Bench Guilty plea
conviction offense Mean Median Mean Median Mean Median Mean Median Mean Median
Aggravated assault 7 6 8 6 8 6 9 6 7 6
Other violentc 6 6 6 6 5 4 8 6 6 6
Property offenses 6 mo 6 mo 8 mo 6 mo 6 mo 6 mo 9 mo 6 mo 6 mo 6 mo
Burglary 7 6 8 6 5 2 10 11 7 6
Larcenyd 6 5 8 6 6 6 8 6 6 5
Fraude 5 5 9 6 6 6 10 12 5 5
Drug offenses 6 mo 6 mo 8 mo 6 mo 7 mo 8 mo 8 mo 6 mo 6 mo 6 mo
Possession 6 6 7 6 6 6 7 6 6 6
Trafficking 6 6 9 8 8 8 9 6 6 6
Weapons offenses 6 mo 6 mo 7 mo 6 mo 7 mo 6 mo 6 mo 4 mo 6 mo 5 mo
Other offensesf 6 mo 6 mo 7 mo 6 mo 7 mo 6 mo 7 mo 3 mo 6 mo 6 mo
SENTENCES TO PROBATION
All offenses 41 mo 36 mo 48 mo 60 mo 50 mo 54 mo 48 mo 60 mo 41 mo 36 mo
Violent offenses 48 mo 36 mo 50 mo 60 mo 58 mo 60 mo 46 mo 60 mo 48 mo 36 mo
Murdera 71 60 243 360 281 360 60 60 68 60
Sexual assaultb 66 60 52 60 61 60 50 60 67 60
Robbery 52 60 58 60 74 60 55 60 52 60
Aggravated assault 41 36 45 48 49 54 38 36 41 36
Other violentc 43 36 50 60 36 36 51 60 42 36
Property offenses 40 mo 36 mo 46 mo 60 mo 44 mo 48 mo 47 mo 60 mo 40 mo 36 mo
Burglary 45 36 45 48 43 60 50 60 45 36
Larcenyd 39 36 48 60 40 36 48 60 38 36
Fraude 39 36 45 60 52 60 45 60 39 36
Drug offenses 42 mo 36 mo 49 mo 60 mo 56 mo 60 mo 49 mo 60 mo 41 mo 36 mo
Possession 36 36 44 60 50 60 43 48 36 24
Trafficking 45 36 54 60 57 60 56 60 45 36
Weapons offenses 34 mo 25 mo 36 mo 36 mo 41 mo 36 mo 34 mo 24 mo 34 mo 24 mo
Other offensesf 40 mo 36 mo 49 mo 60 mo 41 mo 36 mo 51 mo 60 mo 40 mo 36 mo
See note on tables 1.1, 1.2, and 1.3. Some estimates in this table are based on as few as 1 case and are therefore
unreliable.
**Because the median includes felons sentenced to life in prison, the median sentence to prison is greater than
50 years.
aIncludes nonnegligent manslaughter.
bIncludes rape.
cIncludes offenses such as negligent manslaughter and kidnaping.
dIncludes motor vehicle theft.
eIncludes forgery and embezzlement.
fComposed of nonviolent offenses such as receiving stolen property and vandalism.
Source: Levin, Langan, and Brown, 2000, pp. 39–40.
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In addition, some research suggests that sentences are based on the severity of
offenders’ actions rather than the specific charges for which they are convicted.
Thomas Uhlman (1977, p. 36; 1979, p. 91), for example, found that defendants who
were sentenced following charge reductions were more likely to receive sentences
at the high end of the range for those charges, whereas defendants who had been
convicted on the original (and more serious) charges received sentences that were
lower in the range. In the end, the terms ended up being fairly close, leading him to
conclude that “plea ‘bargains’. . . may be more apparent than real” (Uhlman, 1977,
p. 36). Other researchers have noted similar phenomena, with sentences being
raised so that they reflect the gravity of the actual offenses rather than simply the
label placed upon them by bargaining prosecutors (Ferdinand, 1992, p. 110; Math-
eny, 1980). See Box 11.2 for an example illustrating how this may occur.
In some cases, bargains reflect the legal reality or worth of a case. One
scholar noted that grand juries in New York during the early 1900s issued indict-
ments for murder “in almost every” homicide case in the event that evidence
showed up at trial that justified the more serious charges (Train, 1922, p. 224). If
prosecutors did not reduce the charges where appropriate, serious injustices would
undoubtedly result. Even today, some prosecutors overcharge and reduce the
charges after reviewing the case and meeting with defense attorneys to bargain
(Holten and Lamar, 1991, p. 208; Lindquist, 1988, p. 171).
HISTORY OF PLEA BARGAINING
The history of plea bargaining is one of the least documented elements in the crim-
inal justice system. One reason for plea bargaining’s obscure past may be that bar-
gaining was considered inappropriate by the judiciary until the late 1960s.
One of the earliest documented plea bargains may have taken place in 1431,
when Joan of Arc was offered the opportunity to save herself from being burned at
the stake as a heretic by recanting her statements that she had heard the voices
of three saints sent by God and was acting on holy directions to help free France
from the English (Sackville-West, 1936, p. 330). In this case, admitting the crime
of heresy temporarily spared her from the death penalty.2
Another early form of plea bargaining took place during the 1692 witch trials
in Salem, Massachusetts. In those cases, accused witches were told if they con-
fessed they would live, but if they failed to do so, they would be hung; the judges
did this both to encourage confessions and because they wanted the “admitted”
witches to testify against others in an attempt to uncover more witches (Hill, 1995,
p. 137). Conceding that they had practiced witchcraft spared many accused witches
from execution; in fact, no accused witch who confessed was put to death.3 Those
who refused to plead guilty met with less savory fates; nineteen individuals were
hung and one was pressed to death (Giles Corey, who was mentioned in Step 4).
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In retrospect, the Salem witch trials illustrate one of the harshest criticisms of plea
bargains—that they sometimes induce the innocent to plead guilty.
A third example of an early plea bargain appears to have occurred in England
in the 1704 case of Daniel Defoe. Defoe pled guilty “on the promise of pardon
secretly given to him” to the charge of writing a “scandalous and seditious pam-
phlet” (Andrews, 1890/1991, p. 99). It is important to remember that such a charge
was considered quite serious at the time. Defoe was fined, ordered to make three
appearances in the pillory, and incarcerated “during the Queen’s pleasure”; after a
year in prison, the Queen sent Defoe’s wife the money to pay the fine (Andrews,
1890/1991: pp. 100–101). It is unlikely that any formal written agreement was
drawn up, but this case appears to illustrate an early plea bargain. At the very least,
the defendant pled guilty because he expected leniency in exchange for his plea, as
per the secret promise.
Although these three examples seem to illustrate plea bargains, they are very
different from the plea bargains that take place today. One similarity that ties these
three examples together is that, in each case, the courts valued a confession above
punishment. In fact, the courts seemed to value a confession more than a conviction.
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BOX 11.2
How Reduced Charges May Not
Necessarily Mean Reduced Sentences
To some, it is difficult to understand how lowering charges does not always mean more lenient
sentence outcomes. To illustrate this concept, let us consider a hypothetical burglar’s sentence
in New Jersey. If a weapon is used in the offense or an injury occurs, burglary is a second-degree
felony in New Jersey (which carries a term of five to ten years under New Jersey guidelines),
otherwise burglary is a third-degree felony (which carries a term of three to five years). Assume
Joe Burglar successfully bargains to have his burglary bumped down a notch (i.e., the prosecu-
tor agrees to “ignore” the presence of a weapon or injury and charges Joe with a run-of-the-mill
burglary).
If Joe is sentenced on the reduced charges, the sentencing judge, after reviewing the case,
may give him a sentence near the maximum for the charge, in this case, five years in prison. The
judge may do this because Joe’s actions are serious for a third-degree crime.
If Joe is sentenced on the more serious charges, however, the sentencing judge may
review the case and give him a sentence toward the lower end of the sentencing range for the
charge, in this case, five years in prison. The judge may do this because, when compared to
other second-degree offenders, Joe’s actions are less serious.
Either way, Joe ends up spending five years in prison. His record, however, shows a con-
viction on the reduced charge and there is a chance that the outcome will be more lenient than
the maximum term. Most important, from Joe’s point of view, is that he has reduced the maxi-
mum sentence he can receive from the judge. And, we do know that certainty is a value held in
great regard by defendants facing sentences.
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In the first two cases, which were heard in ecclesiastical courts (i.e., church
courts) rather than criminal courts, confessions legitimized the trials by showing
the public that the accuseds’ crimes were real rather than fiction. In the third case,
Defoe admitted that his pamphlets were scandalous and seditious rather than hav-
ing any scholarly value. In all three cases, the confessions legitimized the accusa-
tions and the courts’ role in prosecuting them. Today’s plea bargains, on the other
hand, appear to have developed out of a desire for convictions (due to a systemic
pressure to efficiently dispose of cases).
This is not to say that there were no instances of jurisdictions or time periods
in which plea bargaining was the norm. One researcher uncovered a curious 1485
English hunting law that stated that defendants who confessed to violating the
statute would be fined as misdemeanants, while those who failed to confess would
be tried as felons (Langbein, 1974, p. 70); other researchers have found “specific
indications” of true plea bargaining in early times (Alschuler, 1978, pp. 221–222),
but these examples do not suggest a regular pattern of plea negotiation. It is examples
such as these, however, that have led some scholars (e.g., Dash, 1951, p. 396) to
assert that plea bargaining was a method used by prosecutors in the seventeenth
and eighteenth centuries to reduce the severity of sentences from death to other
options, such as transportation to a penal colony.
If they existed at all, plea bargains were rare in early America. In 1804, in
response to a young man’s guilty plea to murder and rape, the trial judge was so
surprised that he informed the defendant that he “was under no legal or moral obli-
gation to plead guilty” and that he had the right to deny the charges and force the
government to prove them, but the defendant insisted on pleading guilty (Com-
monwealth v. Battis, 1804, pp. 95–96). This led the judge to inform the defendant
that he would be given some time to think about his actions and to direct the court
clerk not to record the guilty pleas. Later that afternoon, the defendant again pled
guilty when he was brought into court, leading the judge to question those who had
contact with the defendant:
Upon which the Court examined, under oath, the sheriff, the jailer, and the justice, (before
whom the examination of the prisoner was had previous to his commitment) 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. (Commonwealth v. Battis, 1804, p. 96)4
By the 1830s, however, plea bargains had become routine in Boston, Massachu-
setts. As early as 1832, public ordinance violators could expect more lenient sen-
tences in the city’s police court (i.e., a misdemeanor level court) if they pled guilty
(Ferdinand, 1992, p. 89). After the defendants entered “not guilty” pleas, whoever
prosecuted the cases could begin negotiations, offering to drop some of the charges
and impose minor fines for the remainder of the charges in exchange for guilty
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pleas (Ferdinand, 1992, p. 94). The rate of police court guilty pleas more than
quadrupled between 1834 and 1844, increasing from 8.1 percent of the cases to
35.1 percent (Ferdinand, 1992, p. 89).
From public ordinances, the practice spread to higher courts, including those
that handled misdemeanors and felonies (Ferdinand, 1992, p. 95). Part of the popu-
larity of plea bargaining in the general jurisdiction courts may have been the rapid
increases in caseload, from some 300 cases a year to 1,500 cases a year by 1850
(Ferdinand, 1992, pp. 99, 101). It became normal for defendants to plead not guilty,
then to switch their plea to guilty in exchange for the dismissal of charges or other
“suitable agreement[s]” arranged with the prosecutor (Ferdinand, 1992, p. 101).
It is important to note that the first negotiated pleas in Boston were for
offenses that did not have a clear victim (Ferdinand, 1992, p. 93). In victimless
cases, such as gambling, the prosecutor does not have to factor in victim concerns,
including the victim’s safety or sentence preferences. Instead, criminal justice offi-
cials are the complainants, and their interests are more easily accommodated by
plea bargaining. Haller (1978, p. 274) noted that the development of professional
police and prosecutors’ offices in the mid-1800s meant that responsibilities such as
issuing arrest warrants and charging defendants were taken away from the courts,
which further facilitated the growth of plea bargaining as individuals who were not
trained in the law began to look for ways to handle their caseloads. From its
humble beginnings as a way to dispose of mala prohibita crimes that were illegal
only because they were legally prohibited (e.g., prostitution or public drunken-
ness), plea bargaining expanded to encompass mala in se crimes in which the harm
and victim are more clear (e.g., battery or theft).
Even if they were routine before the Civil War, it was only after that war that
cases in which plea bargains had been negotiated began to appear in the appellate
court docket (Alschuler, 1978, pp. 223–224). No longer confined to the trial courts,
plea bargains needed to be considered at this higher level of review. The appellate
courts reacted with shock and began to decry the practice whenever given the
opportunity.
By 1878, plea bargaining had become such an issue that one state’s supreme
court reversed a conviction because the trial court had not made an independent
examination of the case facts before accepting a defendant’s guilty plea (Edwards v.
People, 1878). Apparently, the state legislature had enacted a statute specifically
directing judges to vacate guilty pleas they felt were erroneous (i.e., that the defen-
dant was factually innocent of the crime) or the product of “undue influence”
(Edwards v. People, 1878, p. 761). Because the text of the Michigan Supreme Court
decision illustrates so well the fears held by some that plea bargains were perverting
the criminal justice system, a few excerpts are presented in Box 11.3. From those
excerpts, one can easily see that the legislature sought to address two primary criti-
cisms of plea bargaining: (1) that innocent defendants will be induced to plead guilty
and (2) that sentences will not adequately reflect the crimes committed by offenders.
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One legal historian notes that plea bargains in the nineteenth century differed
from their current counterparts in that the majority of historic bargains involved
reducing charges, whereas current bargains are more likely to consist of dropping
one or more of the defendant’s charges (Friedman, 1978, p. 251). He cites the
example of an Alameda County, California, man who was charged in 1880 with
embezzling $52.50. At first, he pled “not guilty,” but he changed his plea to
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BOX 11.3
A Few Excerpts from Edwards v. People (1878)
The Legislature of 1875, having in some way had their attention called to serious abuses caused
by procuring prisoners to plead guilty when a fair trial might show they were not guilty, or
might show other facts important to be known, passed a very plain and significant statute
designed for the protection of prisoners and of the public. It was thereby enacted as follows:
That whenever any person shall plead guilty to an information filed against him in
any circuit court, it shall be the duty of the judge of such court, before pronouncing
judgment or sentence upon such plea, to become satisfied, after such investigation
as he may deem necessary for that purpose, respecting the nature of the case, and
the circumstances of such plea, that said plea was made freely, with full knowledge
of the nature of the accusation, and without undue influence. And whenever said
judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty
to vacate the same, direct a plea of not guilty to be entered, and order a trial of the
issue thus formed. (pp. 761–762)
It is contrary to public policy to have any one imprisoned who is not clearly guilty of the
precise crime charged against him, and it is equally contrary to policy and justice to punish any
one without some regard to the circumstances of the case. By confining this statute to informa-
tions and not extending it to indictments,5 it is easy to see that the Legislature thought there was
danger that prosecuting attorneys, either to save themselves trouble, to save money to the
county, or to serve some other improper purpose, would procure prisoners to plead guilty by
assurances they have no power to make of influence in lowering the sentence, or by bringing
some other unjust influence to bear on them. It is to be presumed they had evidence before them
of serious abuses under the information system which in their judgment required checking by
stringent measures.
Every one familiar with the course of criminal justice knows that those officers exercise
very extensive and dangerous powers, that in the hands of an arbitrary or corrupt man are capable
of great abuse. And unless the general impression is wrong, great abuses have been practiced by
this very device of inveigling prisoners into confessions of guilt which could not be lawfully
made out against them, and deceiving them concerning the precise character of the charges
which they are led to confess. And it has also happened, as is generally believed, that by receiv-
ing a plea of guilty from a person whose offense is not aggravated, worse criminals who have
used him for their purposes remain unpunished, because the facts which would convict them
have not been brought out. (pp. 762–763)
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“guilty” after the prosecutor reduced the charge to theft of less than $50.00.
Another defendant pled “not guilty” to charges of grand larceny, but also changed
his plea when the charges were reduced to petty larceny. It appears that plea bar-
gains were possible for serious property crimes in Alameda County, even in the
nineteenth century.
By 1900, the majority of cases in New York County, New York, were dis-
posed of by guilty pleas. One scholar tracked guilty pleas for the county and found
that between 77 percent and 83 percent of defendants pled guilty between the years
of 1900 and 1907 (Train, 1922, p. 226). And, the pleas were not always due to
defendants’ spontaneous decisions to plead guilty. Train (1922) noted that some
court officials negotiated with defendants for pleas and built reputations based on
their ability to do so:
Court officers often win fame in accordance with the ability as ‘plea getters.’. . . Accordingly
each morning some of them visit the pens on the floor below the court-room and negotiate
with the prisoners for pleas. The writer suspects that the assistant in charge of the Part is
usually depicted as a fierce and relentless prosecutor and the jury as a hardened, heartless
crew who would convict their own mothers on the slightest pretext. (p. 223)
By the 1920s, plea bargains had become standard practice in other jurisdictions,
but they still were not fully endorsed by appellate courts. Two scholars in that
decade, Justin Miller and Raymond Moley, each published articles decrying the
practice. According to statistics uncovered by the two, plea bargains were everyday
routine nearly everywhere. In Cook County, Illinois, for example, 96 percent of
felony prosecutions in 1926 resulted in guilty pleas (Moley, 1928, p. 97). In fact, of
twenty-four jurisdictions for which Moley was able to obtain data, five (St. Paul,
Syracuse, Omaha, Yonkers, and Minneapolis) had guilty plea rates of 90 percent or
higher, six had rates between 80 percent and 89 percent, ten had rates between
70 percent and 79 percent, and only three had rates below 69 percent (Moley, 1928,
p. 105). Although Moley was unable to ascertain exactly how many of the guilty
pleas resulted from plea bargaining, he concluded that giving prosecutors discre-
tion “has made it possible for the practice of ‘bargaining for pleas’ to assume very
large proportions in the administration of criminal justice, particularly in the large
cities” (Moley, 1928, p. 109).
Moley (1928, p. 103) referred to the process as “compromising” of cases or
“bargaining for pleas” and likened the practice to baseball players’ batting aver-
ages. Possibly because of his effective analogy, modern court scholars talk about
prosecutors’ “batting averages” as a driving force behind the prevalence of plea
bargaining. See Box 11.4 for some other insights provided by Moley.
In his article, Miller (1927) spent less time documenting the existence of plea
bargaining, instead focusing on the process itself and the motivations behind it.
He noticed that judges varied in their amenability to bargains; some refused to
allow them in their courts, others suggested bargaining to the attorneys, and a few
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BOX 11.4
Moley’s Wisdom and Insight Regarding Plea Bargains
As a quick perusal of the following quotes readily shows, Moley’s insight regarding plea bar-
gaining demonstrates the nature of the practice, even as it is practiced today.
Lists gains to the prosecutor and uses the phrase “batting average”:
[There is no] onerous and protracted [trial, no risk of loss at trial, no risk of having
to oppose an appeal, bargains count as convictions] and when he goes before the
voters for re-election he can talk in large terms about securing convictions when, in
reality, these “convictions” include all sorts of compromises. The district attorney’s
“record,” as he usually interprets it to the public, rests upon the ratio of convictions
to acquittals and means as much to him as a batting average means to a baseball
player. (p. 103)
Even mandatory sentencing laws can be circumvented:
Here, then is exactly what the operation of the Baumes Law [a mandatory sentenc-
ing scheme] in the largest city of the United States finally came down to. It indicates
that in cases where the evidence was fairly conclusive and the accused persons were
willing to plead guilty, the discretion of the district attorney, with the consent of the
court, permitted half of the cases in which guilt was established to escape the legis-
lators’ well made plans. (p. 113)
Bargains represent perverse logic:
Either a person is guilty of the crime charged, or he is not. It does not satisfy the
requirements of justice to punish him for one crime because it is impossible to pun-
ish him for the correct one. (p. 124)
The importance placed on prosecutors’ records facilitates bargaining:
With present methods of establishing his “efficiency” before the public, he is able
through compromising large numbers of cases to appear to be getting large num-
bers of convictions when, in fact, his convictions are to a large extent merely theo-
retical. Moreover, it is easy for the prosecutor to avoid labor in the way merely for
the purpose of expending his best energies upon sensational and politically advan-
tageous exploits in court. (p. 125)
Plea bargaining is not rational and its goals are not justice:
It is in its methods and its implications a process of driving a bargain—a game of
wits. It is psychologically more akin to a game of poker than to a process of jus-
tice. . . . It is not a search for truth; it is an attempt to get as much from an unwilling
giver as is possible. (p. 125)
Source: R. Moley, 1928, “The Vanishing Jury,” Southern California Law Review, 2: 98–127.
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“bargain[ed] openly, in court, with the accused person” (Miller, 1927, p. 10). He
felt some of the blame for the practice lay with increases in caseload because of the
“prolific creation of new crimes” (i.e., the outlawing of more and more behaviors
by the legislature). More recently, Mather (1978, p. 283) noted that the creation of
new laws during Miller’s day affected caseloads in two ways; increases in case-
loads were obvious, but the creation of new laws also transformed caseloads
because the new cases were of a “distinctly different type.” The new laws (e.g.,
Prohibition laws) did not enjoy total support by the public, so juries sometimes
refused to convict those accused of breaking them. This reality made prosecutors
even more inclined to bargain (Haller, 1978, p. 273; Mather, 1978, p. 283).
Other legal historians have attempted to explain the evolution of plea bar-
gaining in terms of caseload differences. Langbein (1978, p. 263) noted that Old
Bailey (a famous court in England) heard a dozen cases a day in the 1730s com-
pared to current estimates of several days per case. Why the huge increase in pro-
cessing time? Langbein argues that the shift lies in the transformation of legal
procedures. In the 1700s, the rules of evidence were far less formal than current
ones, and there were no attorneys, which meant there were no motions or extended
cross-examination sessions (Langbein, 1978, p. 263). In other words, the number
of trials is not as important as the time consumed by each one. It isn’t just that there
are more trials now than in the past; indeed, the trials of yesterday were very differ-
ent from today’s notion of trials and due process.
It is also important to acknowledge the differences between methods used to
determine guilt in earlier times and those used today. Looking back to the early his-
tory of courts (see Step 4), trial by ordeal and battle now seem like little more than
legally sanctioned guessing games but were once considered to be effective meth-
ods to determine the guilt of accused lawbreakers. There were no video surveillance
cameras to capture incriminating footage of robberies, no DNA tests, no hair analy-
sis, and no expert scientists whose abilities to unravel complex mysteries dazzle
even prime-time television audiences. Instead, early courts relied on divine inter-
vention, and later courts relied on jury trials in which both sides presented evidence
to support their claims about what happened on some night in question. The ration-
ale behind the adversarial process was that the truth would emerge through careful
analysis of the evidence presented by the defense and prosecution. Current scientific
analysis, on the other hand, reduces at least some of the doubt regarding the guilt of
the accused. This realization led one distinguished legal historian (Friedman, 1978,
p. 257) to comment: “In a system run by amateurs . . . without technology or police
science—no fingerprints, blood tests, ballistics reports—the classical trial might be
as good a way as any to filter out the innocent from the guilty.”
Regardless of how plea bargaining got its foot in the door, it is clear that it has
been a regular part of American criminal justice since the nineteenth century,
despite not being recognized as “legal” by the appellate courts. Even until the
1960s, plea bargains were still treated as the justice system’s “dirty little secret.”
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Defendants who had bargained were not allowed to acknowledge this in court;
instead, they were expected to be “thespians who would affirm in court, before
attorneys and judges who knew better, that guilty pleas were wholly voluntary, the
consequences of contrition, and not induced by assurances of leniency” (Cohen
and Tonry, 1983, p. 308). In 1967, an important report, The Challenge of Crime in
a Free Society documented the presence of plea bargaining and recommended
bringing it out of the shadows and into open court (President’s Commission on
Law Enforcement and Administration of Justice, 1967/1968, pp. 333–338). Partly
as a result of this report, plea bargaining is now officially recognized and defen-
dants no longer have to put on fraudulent performances in court. In fact, plea bar-
gaining has its own case law, as we will see later in this chapter.
EFFECTS OF PLEA BARGAINING ON
COURTROOM WORK GROUPS
There is no doubt that plea bargaining plays a central role in the American justice
system. That some 90 percent of defendants plead guilty means that even a reduc-
tion of 10 percent in that number could double the number of trials and signifi-
cantly overtax the court system. For this reason, and others, the courtroom work
group views plea negotiation as attractive, and as a team fashions the sentences
imposed on the majority of defendants. One courts scholar summed up the impor-
tance of bargains, calling them “the most critical stage in the criminal justice sys-
tem. [They are] the most important determinant of who gets what from the criminal
justice process” (Neubauer, 1974, p. 195).
Plea bargaining is the principal mechanism that allows judges, prosecutors,
and defense attorneys to cooperate and work together toward their individual and
collective goals (Blumberg, 1967; Eisenstein and Jacob, 1977; Nardulli, 1978;
Weninger 1987, p. 266). Courts observer and scholar Maureen Mileski (1971)
explained the importance of cooperation for the smooth functioning of the court-
room work group:
The prosecutor balances his need to prosecute cases against his need to maintain good
relations with the judge, public defender, and many other attorneys who frequently take cases
to court; all are members of the “team” that maintains orderly operations of the court. They
share a worksite. Together they can make their worksite a fractious, turbulent one or an
orderly and predictable one. Though the interest of some of the parties are formally at odds,
in operation they share common interests. A certain level of cooperation between them
[develops]. (p. 488)
To understand why courtroom work groups rely so heavily on plea bargaining, it is
important to understand how each member of the courtroom work group benefits
from them. The primary motivation is that bargains represent a “done deal”; there
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is no risk of loss at trial for either prosecution or defense. In cases in which there is
no “smoking gun” evidence, bargains may be a way for both sides to minimize
their losses through negotiations. All members of the courtroom work group bene-
fit in some way from plea bargains. See Box 11.5 for a writeup about a courtroom
work group that emphasized cooperation and excluded those who failed to partici-
pate with the other members of the courtroom work group.
Plea bargains are a major boon to prosecutors because they allow them to
improve their “batting averages” (Blumberg, 1967, p. 179). In a system that places
more value on convictions than actual sentences, prosecutors can easily view
plea bargaining as a way to increase their conviction rates (Moley, 1928, p. 103;
Kunkle, 1989). Through plea bargaining prosecutors can avoid trials that, in addi-
tion to consuming great amounts of time and requiring much work, can result in
acquittals (Blumberg, 1967, p. 179). Of course, even the most politically insulated
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Effects of Plea Bargaining on Courtroom Work Groups 307
BOX 11.5
The Value of Cooperation to the Courtroom Work Group
One of our students, Constance O’Connor, was invited by the judge she was observing to attend
normally private in-chambers sessions during which she observed and interviewed members of the
courtroom work group. Her findings are below. As you read them, consider how this courtroom
work group would treat newcomers, especially those who failed to cooperate with the others:
All of the subjects [I] interviewed stressed that with group cooperation, the system
works efficiently and smoothly. There is a continuing need to work together with
required reasonableness that helps maintain the group’s cohesion. Mutual under-
standing, trust, and a reciprocal give and take are the necessary components of the
work group if it is to operate at full efficiency. Cooperation is the cornerstone of the
system functioning at its maximum capabilities.
According to those involved in this work group, without cooperation the system
bogs down to the detriment of all. To quote the words of a probation officer that I
interviewed, “If someone’s not cooperating with the others, it throws a monkey
wrench into the whole thing.” Interestingly, all of the subjects personally felt that a
certain type of personality was the biggest obstacle to group cooperation. This per-
sonality was variously described as one who is a “stickler for details,” intent upon
career advancement often at the expense of others, or just a “plain jerk.” This type
of personality does not share the common goals and values of the work group and
is predominantly concerned with his individual successes, not the success of the
group as a whole. Group cooperation and cohesiveness are not a priority to this type
of individual. It was noted by several subjects that this type of individual “doesn’t
last long around here.” In fact, it was specifically mentioned that the judge in this
work group was especially intolerant of this type of personality and had “gotten rid
of anyone who wouldn’t work within her system.”
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prosecutor cannot bargain all cases away, lest he or she incur the wrath of an angry
public.
Mileski (1971) noted that both public and private defense attorneys pushed
plea bargains as a way to protect the court from defendants’ requests for trials. Since
public defenders are part of the criminal justice system, they may decide it is expe-
dient or wise to serve the system’s interests rather than those of their clients. Even
private attorneys may be swayed to work for the court through preferential schedul-
ing of their cases or harsh punishment of their clients who refuse to bargain. Sched-
uling preferences allow attorneys to maximize the use of their time, whereas harsh
punishment of their clients affects their reputations. Cooperative defense attorneys
are able to achieve other rewards, including the granting of continuances to allow
for fee collection or the scheduling of cases before a “favorable” judge (Blumberg,
1967, pp. 105, 144). These controlling actions serve to coax defense attorneys to
“play the [plea bargain] game in order to get along” (Blumberg, 1967, p. 106).
Defense attorneys can maximize their efficiency and profit through careful
use of plea bargaining. Through cooperating with the court, defense attorneys can
dispose of cases quickly, an important consideration in that public defenders are
part of the bureaucracy and private attorneys are usually paid on a case-by-case
basis. Many private attorneys find that plea bargaining is cost-effective because it
requires less time and effort than going to trial (Knowles and Prewitt, 1969; Moran
and Cooper, 1983, p. 75). In fact, when plea bargaining was banned in Alaska,
defense attorneys reported that they had to increase their fees to make up for the
additional work they had to do (Rubinstein and White, 1978, p. 371). Sometimes,
attorneys discuss the possibility of plea bargaining with a client and “if the defen-
dant is amenable to a deal, [they are] hired (in fact) for this purpose rather than as
an actual courtroom defense” (Moran and Cooper, 1983, p. 75).
Plea bargaining becomes all the more attractive to defense attorneys when
one considers that the majority of defendants are presumed by the courtroom work
group to be guilty. Through plea bargaining, defense attorneys are able to counter-
act overcharging by prosecutors and get charges reduced to reflect the legal worth
of a case (Holten and Lamar, 1991, p. 208; Lindquist, 1988, p. 171). The ability to
obtain lenient sentences, or apparently lenient, in the face of overwhelming evi-
dence of guilt is another way attorneys can boost their reputations.
Even judges benefit from the process. Plea bargaining allows judges to “avoid
the time-consuming, expensive, unpredictable snares and pitfalls of an adversary
trial” (Blumberg, 1967, p. 65). The benefit of saved time is obvious, but what
“unpredictable snares and pitfalls” could await a judge? Remember that one role of
judges is to issue rulings on pre-trial motions and objections during the trial itself.
Every ruling is subject to review by a higher court, and judges’ decisions are some-
times overturned on appeal, which they dislike (Heumann, 1978, p. 66). Plea bar-
gaining avoids this embarrassing possibility. On a similar note, judges also avoid
having to make difficult rulings on vague issues that come up during the trial.
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308 Plea Bargaining
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Plea bargains also allow judges to “engage in a social-psychological fantasy”
in which the defendant has already admitted his guilt and stands “repentant” before
the judge (Blumberg, 1967, p. 65). Some judges place a high value on admissions
of culpability, so defendants who plead guilty may receive more lenient sentences.
One judge told a defendant who had pled guilty that he was giving him a lenient
sentence because he did not get on the witness stand and tell “some perjured tale”;
the same judge gave one felon probation after he pled guilty, but imposed a five-
year prison term on his co-defendant who refused to admit his guilt and insisted on
going to trial (Friedman, 1978, pp. 253–254). Admitting one’s culpability could
make a huge difference in the sentence outcome when appearing before that judge,
and it sometimes affects the sentences in other judges’ courtrooms, too.
Finally, plea bargaining allows judges to avoid shouldering the burden of sen-
tencing alone. As we read in Step 7, judges often feel underprepared to sentence
the offenders who appear before them. Plea bargains eliminate this responsibility
because they typically involve ratifying a sentence deal that has already been
worked out in advance. In addition, judges need not worry that the sentences they
impose during plea bargains will be held against them. When Alaska banned plea
bargains, for example, sentences became more severe, but not because bargains
had been used to gut sanctions; instead, judges could no longer blame unpopular
sentences on prosecutors, so they increased the overall severity of sentences in
order to appease the public (Rubinstein and White, 1978, p. 378). Transferring the
blame for sentences to plea bargaining may be even more appealing to judges who
wish to keep their positions during upcoming elections.
Although they are not members of the courtroom work group, defendants also
benefit from plea bargains. They are able both to limit the severity of the sanctions
they face and to add a level of certainty to the criminal justice process. For guilty
individuals, the threat of going to trial is sometimes used to coax prosecutors into
making “sweetheart deals” (Weninger, 1987, p. 270), but even innocent defendants
sometimes plead guilty because they are overwhelmed by the evidence against them
(or what the police and prosecution say is evidence against them) or by the justice
system itself. Sometimes, plea bargains are too good for even innocent defendants
to pass up, especially if they have been held in jail before trial. After spending ten
months in custody awaiting trial, for example, one defendant insisted he was inno-
cent but agreed to a bargain that offered a sentence of one year, which meant he
would be immediately released, saying “You mean if I’m guilty I get out today? . . .
But if I’m innocent I got to stay in?” (Mills, 1971, p. 62). If deals aren’t sweet
enough, on the other hand, the defendants may decide to take their chances at trial.
Sometimes, defendants plead guilty because they wish to avoid further
stigma or inconvenience. One defendant, for example, pled guilty because he knew
a trial would be reported in the newspaper and he worried about the effects on his
family (Baldwin and McConville, 1978, p. 294). The above-mentioned defendant
who insisted he was innocent pled guilty because fighting the charges would
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Effects of Plea Bargaining on Courtroom Work Groups 309
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involve waiting in jail until trial, whereas a guilty plea ensured his immediate
release (Mills, 1971, p. 62). When we consider that the average case takes about
seven months from the time of arrest to sentencing, and jury trial cases average a
year from arrest to sentencing (Brown, Langan, and Levin, 1999, p. 8), we can
understand the motivation to just plead guilty and go home, despite the effect on
one’s record.
THE HOW AND WHY OF PLEA BARGAINING
Now that we know a little about the types, history, and motivations behind plea
bargaining, we need to look at how they take place. Before any communication
takes place between the defense attorney and prosecutor, the two adversaries go
through the case files to determine what the case is “worth.” Items that increase
worth include solid evidence, serious harm, vulnerable victim, extreme culpability,
and other factors that strengthen the case against the defendant. The presence of
weak evidence, uncooperative witnesses, reluctant victims (e.g., in some domestic
violence cases), dubious harm, or reduced culpability (e.g., due to youth or mental
impairment) decreases the legal worth of the case. Fairness also fits into the pic-
ture, as the goal of both sides is supposed to be justice.
In some respects, the prosecutor begins the plea bargaining process since he or
she makes the first statement regarding what the case is worth through the charges
he or she files. If the defense attorney disagrees with the charges, he or she may
decide to bargain with the prosecutor.
Although either side may broach the possibility of plea bargains, they are typ-
ically initiated by defense attorneys, who approach prosecutors with offers to
negotiate cases. In a system that depends heavily on guilty pleas, the initiation and
continuation of plea bargaining sessions is one of the defense attorney’s primary
roles. If the defense attorney’s offer is consistent with a prosecutor’s perception of
the “worth of the case” it will usually be accepted; the prosecutor is usually more
concerned about convictions than sentences (McCall, 1978, p. 99). If the offer does
not seem appropriate, the prosecutor may negotiate further (McCall, 1978, p. 99). If
the prosecutor won’t agree, the defense attorney may threaten to “work [the prose-
cutor] to death” through filing motions (Heumann, 1978, p. 39) or otherwise put-
ting on a zealous defense that, through exercising as many of the defendant’s rights
as possible, will make the prosecutor work hard to obtain any conviction.
The bargain may involve dropping charges, reducing the severity of individ-
ual charges (e.g., from grand larceny to larceny), or making specific sentence rec-
ommendations. Even where the negotiation does not include the recommendation
of a specific sentence, bargains allow the defense to limit the discretion of “hang-
ing” judges (who are known to be tough on offenders) by lowering the maximum
sentence that may be imposed.
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Once the attorneys are in agreement, it is the defense attorney’s job to “sell
the offer to the accused” (Moran and Cooper, 1983, p. 75). It is this role in plea bar-
gaining that has attracted much criticism. Blumberg (1967) likened the defense
attorney’s role in persuading the defendant to accept negotiated justice to the work
of a “double agent” or someone participating in a “confidence game”:
Criminal law is a unique form of private practice. It simply appears to be private practice.
Actually, it is bureaucratic practice, because of the lawyer’s role in the authority, discipline, and
perspective of the court organization. . . . [T]he lawyer in the criminal court is a double agent,
serving higher organizational rather than professional ends. The lawyer-client “confidence
game,” in addition to its other functions, helps to conceal this fact. (pp. 114–115)
In the end, the bargains must meet with judicial approval, but the recommendations
of the prosecutor and defense attorney are rarely rejected (Cramer, 1981, p. 185;
Feeley, 1979; Neubauer, 1974, p. 93; Ryan and Alfini, 1978, p. 486). Typically,
judges confine themselves to determining whether the defendant appears to be
guilty of the offense and whether the plea was entered into voluntarily (Ryan and
Alfini, 1978, p. 486). This tendency to endorse the attorneys’ work reflects the fact
that judges typically know far less about the case than either attorney, which leads
them to honor the attorneys’ assessment regarding the “worth” of a case (Meyer
and Jesilow, 1997, p. 65).
When the recommended sentences appear too harsh or too lenient, some
judges will refuse the bargain and send the attorneys back to the drawing room to
design a more appropriate sanction (Meyer and Jesilow, 1997, p. 55). Some judges
get more involved in plea bargains than simply reviewing the finalized bargain.
About one third of judges attend plea bargaining sessions and some even “partici-
pate in the substance of plea negotiations with counsel, and in doing so influence,
sometimes even dominate, the sentencing decision” (Ryan and Alfini, 1978,
pp. 501–502). See Box 11.6 for one judge’s assessment of his role in plea bargaining.
In cases where defense attorneys or prosecutors are absent, which is common
in misdemeanor level courts, judges sometimes play an important role in plea bar-
gaining. In courts where there is no prosecutor, judges may “take on the trappings
of the prosecutorial role, including negotiation” (Ryan and Alfini, 1978, p. 495). In
one jurisdiction characterized by lack of defense counsel at misdemeanor-court
sessions, plea bargains were “routinely manufactured by prosecutors and judges”
during the defendants’ arraignments (Meyer and Jesilow, 1997, p. 11). One lower
court judge made his intentions clear when addressing a man accused of presenting
false information to a police officer and violating probation: “If you plead guilty,
I’ll give you credit for time served. That’s what you want to do, right?” (Meyer,
1992b). The hearing lasted one minute from start to finish, and the defendant was
sentenced to the two days he had already served in jail.
If the attorneys are unable to work out a deal that satisfies both of them (and
the defendant), or the judge rejects the bargain, the case must go to trial. Offense
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seriousness is only one factor considered by the parties when negotiating plea bar-
gains, but it should come as no surprise that those accused of violent offenses are
less likely than other defendants to give up their right to trial by pleading guilty
(Brown, Langan, and Levin, 1999, p. 7). Certainly, any offers acceptable to prose-
cutors in violent offenses are less attractive to the defense, who may decide to try
for an acquittal at trial. See Box 11.7 for the breakdown of conviction type (i.e.,
plea bargain versus following a trial) by offense type.
Typically, the prosecutor is less likely to budge on cases with strong evi-
dence, and is more likely to bargain when the chances of conviction are low. If
there is clear evidence of guilt, such as a videotape of the offense or strong scien-
tific evidence, the prosecutor will be unwilling to concede much unless there are
other problems with the case (e.g., the victim is afraid or does not wish to testify at
the trial). Bargains are also unlikely in cases where there is significant public ire,
even if the offense is minor.
Defense attorneys are less likely to give up much in terms of a plea bargain if
there is a decent chance of acquittal (e.g., because of public sentiment for a crime
victim accused of killing a burglar) or if the culpability for the offense may be
blamed on another person (e.g., a killing that may have been in self-defense). If the
bargain involves little gain (e.g., a reduction of only a few years off a lengthy
prison sentence), many defense attorneys would rather take their chances at trial.
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BOX 11.6
One Judge’s Assessment of His Role in Plea Bargaining
The following interview segment with a judge tells a little about how judges can get involved in
the plea bargaining process in the lower courts as well as the supervisory function judges must
fulfill:
They [the attorneys] make offers and counter-offers and often the judge in that court
will sort of get into it. We’ll have a conference in chambers and will talk about the
case. . . . The judge’s duty there is similar to the arraignment court—make sure
there’s justice. . . . The judge says, “Given the facts that you’ve given me, this is
what I would probably sentence.” The defense attorney comes back and says,
“That’s what he [the defendant] wants.”. . . The judge’s role at that point is to be
careful and not give some low-vault [i.e., unnecessarily lenient] indicated sentence.
You’ve got to watch that. Give the same sense of fairness. (Meyer, 1992a)
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THE U.S. SUPREME COURT’S VIEW OF PLEA BARGAINING
By now, it is relatively easy to see that plea bargains save money and time and that
they help the two sides avoid the risks of losing at trial, but these considerations
should not be the only ones that determine whether the practice should be contin-
ued. Saving time and money is a good thing, but appellate courts will not tolerate
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The U.S. Supreme Court’s View of Plea Bargaining 313
BOX 11.7
Percent of Felons Convicted in State Courts,
by Offense and Type of Conviction, 1996
Percentage of felons convicted by—
Most serious Trial Guilty
conviction offense Total Total Trial Jury Bench plea
All offenses 100% 9% 4% 5% 91%
Violent offenses 100% 17% 11% 7% 83%
Murdera 100 46 40 7 54
Sexual assaultb 100 19 11 7 81
Robbery 100 16 10 7 84
Aggravated assault 100 14 7 7 86
Other violentc 100 15 7 8 85
Property offenses 100% 6% 2% 5% 94%
Burglary 100 8 3 5 92
Larcenyd 100 6 2 4 94
Fraudc 100 6 1 5 94
Drug offenses 100% 8% 3% 5% 92%
Possession 100 9 2 7 91
Trafficking 100 8 3 4 92
Weapons offenses 100% 9% 4% 5% 91%
Other offensesf 100% 8% 2% 6% 92%
Note: Detail may not add to the total because of rounding.
Data on type of conviction were available for 629,593 cases.
Table includes estimates for cases missing a designation of type of conviction.
aIncludes nonnegligent manslaughter.
bIncludes rape.
cIncludes offenses such as negligent manslaughter and kidnaping.
dIncludes motor vehicle theft.
eIncludes forgery and embezzlement.
fComposed of nonviolent offenses such as receiving stolen property and vandalism.
Source: Brown, Langan, and Levin, 1999, Table 10.
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fiscally sound features that result in injustice; for example, eliminating the right to
counsel would certainly save a lot of time and money, but would also result in
unconstitutional unfairness. Likewise, plea bargaining would have to be discontin-
ued if it were to be used in a patently arbitrary or discriminatory fashion without
regard for the seriousness of the crimes alleged to have been committed by the
defendants. The following cases illustrate the Supreme Court’s views regarding the
propriety of plea bargaining.
First, the U.S. Supreme Court had to determine whether there must be evi-
dence of defendants’ voluntary entrance into plea bargains. In the 1969 case of
Boykin v. Alabama, the court reversed the conviction of a man who had received five
death sentences after pleading guilty to five counts of robbery, not because death
was an unfair penalty for robbery,6 but because the trial judge had not ensured that
Boykin’s guilty pleas were voluntary. As a result of this case, judges are now
expected to make sure guilty pleas are voluntary; of course this does not always
happen. See Box 11.8 for an example of Amy Grossberg’s post-bargain hearing in
which the judge did try to ensure that she willingly agreed to plead guilty.
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314 Plea Bargaining
BOX 11.8
A Judge Ensures That Amy Grossberg’s Plea Bargain Is Acceptable
The following is a transcript of the hearing following Amy Grossberg’s acceptance of a plea
bargain that would reduce the charges she faced in connection with the death of her newborn
from capital murder to manslaughter. She and her boyfriend were catapulted into infamy after
their newborn son was found dead in a Delaware trash dumpster in 1996. Because Ms. Gross-
berg provided the same answer to every question (i.e., “Yes, your honor”), only her first answer
is included to minimize space.
As you read the transcript, look for how the judge ensures that the bargain is acceptable
(e.g., that it was knowingly and voluntarily entered into by the defendant).
Superior Court Judge Henry duPont Ridgely: Miss Grossberg, you’ve heard the statements to
the court by your counsel, Mr. Malik, regarding the guilty plea which is tendered today. Was
everything he said correct?
Grossberg: Yes, your honor.
Do you understand that you have the right to a speedy trial with the assistance of a lawyer, and
that you will give up that right by pleading guilty?
Do you understand you will have the assistance of a lawyer at sentencing if your guilty plea is
accepted?
You are charged by an amended indictment to include a lesser-included offense, manslaughter . . .
It reads: Amy S. Grossberg, on or about the 12th day of November, 1996, in the County of New
Castle, State of Delaware, did recklessly cause the death of the newborn baby of Amy S. Gross-
berg and Brian C. Peterson Jr. Do you understand the nature of this charge? IS
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Then, the high court addressed the question of whether it is constitutionally
permissible to reward defendants who plead guilty by offering them reduced penal-
ties, ruling that this was acceptable in Brady v. United States (1970, pp. 752–753).
During the same year, the high court agreed to review a case involving another
important issue in plea bargaining, protestations of innocence by defendants who
accept plea bargains. In Carolina v. Alford (1970), Alford was charged with first-
degree murder, but was given the option of pleading guilty to second-degree mur-
der. Despite the strong evidence against him, Alford insisted he was innocent, but
pled guilty to the reduced charge because he feared being executed:
I pleaded guilty on second-degree murder because they said there is too much evidence, but I
ain’t shot no man, but I take the fault . . . and I just pleaded guilty because they said if I
didn’t they would gas me for it, and that is all. (p. 29)
In upholding the validity of Alford’s plea and sentence of thirty years in prison, the
Supreme Court held that defendants may plead guilty without admitting culpability.7
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The U.S. Supreme Court’s View of Plea Bargaining 315
Are you, in fact, guilty of this charge?
Do you understand that the statutory penalty is up to ten years in jail and such fine or other con-
ditions as the court may order?
Has anyone threatened you or forced you to plead guilty?
I show you a guilty plea form. Did you go over this form carefully with your attorneys?
And did you give true answers to each of the questions on this form?
Do you understand each of the constitutional rights that are listed on this form?
Do you understand that you will give up all of these rights by pleading guilty?
I show you now a two-page plea agreement. Did you go over this document carefully with your
attorneys?
And did you read and sign it?
Is this the entire agreement between you and the prosecution?
Do you seek to voluntarily enter this plea of your own free will because you are guilty of this
charge?
Have you discussed this matter fully with your attorneys?
And have you discussed it fully with any other family member that you care to discuss it with?
Do you seek to voluntarily enter a plea of your own free will, of your own free accord?
Are you satisfied that your attorneys have done all that they can reasonably do for you?
Do you understand that the next proceeding before this court will be your sentencing?
Source: Courtesy of The News Journal, Delaware, April 23, 1998.
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Of course, as mentioned earlier in this chapter, some judges may refuse to accept this
type of plea bargain if they feel the defendant is not guilty of the offense (e.g., Ryan
and Alfini, 1978, p. 486).
The next year brought Santobello v. New York (1971), which held that defen-
dants are entitled to a legal remedy if prosecutors break conditions specified in plea
bargains. In that case, Santobello pled guilty after the prosecutor promised not to
recommend a specific sentence. As a result of time delays, a new prosecutor was
assigned to the case who hadn’t realized that his predecessor had made the prom-
ise, so he recommended the maximum sentence. Even though the sentencing judge
said he would have imposed the maximum in the absence of the prosecutor’s rec-
ommendation, the Supreme Court sent the case back with instructions for the trial
court to send the case to another judge or to offer Santobello the option of with-
drawing his guilty plea.
Another landmark plea bargaining case, Bordenkircher v. Hayes (1978) held
that prosecutors can threaten to bring additional charges against defendants who
refuse plea bargains. A prosecutor had threatened to re-indict Hayes under Ken-
tucky’s habitual offender law (which had a mandatory sentence of life in prison) if
he did not accept a plea bargain for five years in prison for writing a forged check
for $88.30. Hayes refused, the prosecutor kept his word, and Hayes received the
mandatory life term. In 1982, the Supreme Court added to Bordenkircher in United
States v. Goodwin, when it ruled that prosecutors may file additional charges
against defendants if they back out of plea bargains that call for fewer charges.8
Taken together, these cases illustrate the Supreme Court’s view that plea bar-
gaining is a valid form of justice, and that the agreements are valid like other con-
tracts (i.e., they cannot be broken without consequences). The cases also demonstrate
that the negotiation process does not prohibit efforts by prosecutors to seek enhanced
charges against defendants who are unwilling to admit their guilt in plea bargains.
Finally, they show the value the criminal justice system assigns to plea bargaining;
even the U.S. Supreme Court said the practice is desirable given the resource savings
it can generate (Santobello v. New York, 1971, p. 260). In the end, it is clear that plea
bargaining progressed from America’s dirty little secret to an accepted and desirable
routine in just a few decades.
See Box 11.9 for an example of the form that must be signed by defendants
who wish to plead guilty. Even a quick perusal clearly shows the influence of the
U.S. Supreme Court decisions regarding plea bargains (see Box 11.10).
ARGUMENTS FOR AND AGAINST PLEA BARGAINING
The Supreme Court has approved of plea bargaining, going so far as to call it “an
essential component of the administration of justice” and stating that “properly
administered, it is to be encouraged” (Santobello v. New York, 1971, p. 260), but
this is only one argument in favor of bargaining. Another argument for the practice
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Arguments for and Against Plea Bargaining 317
BOX 11.9
A Sample Guilty Plea Proceeding Form
To ensure that guilty pleas are voluntarily entered, the following form (or one similar to it) may
be used. In some jurisdictions, defendants read and initial the forms themselves. In New Mex-
ico, however, the judge presiding over the guilty plea is required to complete the form, initialing
that each condition was met before allowing the plea. As you read over the facts that must be
ascertained, consider the U.S. Supreme Court decisions that may have inspired each of them.
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is that it allows courts to devote scarce resources to the cases that require them, by
processing routine cases through bargains. When cases are relatively ordinary, the
members of the courtroom work group may feel their time is better spent on the
more uncommon cases, making plea bargains all the more attractive to them. See
Box 11.11 for one student’s observations of a court of limited jurisdiction. The stu-
dent notes several issues that play important roles in plea bargains.
Defenders of plea bargains also point out that they are used only in cases
where conviction at trial is less likely, so the agreements ensure some form of
penalty for defendants who might be acquitted on technicalities. This is the “half a
loaf is better” argument (Moley, 1928, p. 123). Cutting deals with defendants
enables the prosecutor to better do the job because he or she can use the time saved
to pursue other criminals (Easterbrook, 1992, p. 1975). Sometimes, plea bargains
are offered to those who testify against others, enabling prosecutors to successfully
go after “bigger fish” who mastermind crimes.
One scholar9 argues that plea bargains are “superior” to trials for “separating
the guilty from the innocent” (Easterbrook, 1992, p. 1972). He defends the prac-
tice, in part on grounds that prosecutors are better able than jurors to ascertain
guilt, and plea bargains can consider evidence that might be excluded from trials
(p. 1971).
Victims, too, sometimes prefer plea bargains. By avoiding trial, they need not
testify in court, which may be a frightening experience for victims of violent
crimes. Victims also avoid the emotions associated with the possible acquittal of
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Source: New Mexico Supreme Court Rules 1986, Criminal Forms, Judicial Pamphlet 9, 1990 Replace-
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Arguments for and Against Plea Bargaining 319
BOX 11.10
Some Important Passages from U.S. Supreme Court Cases
on Plea Bargaining
Judges must ensure that guilty pleas are entered voluntarily:
It was error, plain on the face of the record, for the trial judge to accept petitioner’s
guilty plea without an affirmative showing that it was intelligent and voluntary
(Boykin v. Alabama, 1969, p. 242).
Guilt need not be admitted for a plea to be valid:
Thus, while most pleas of guilty consist of both a waiver of trial and an express
admission of guilt, the latter element is not a constitutional requisite to the imposi-
tion of criminal penalty. An individual accused of crime may voluntarily, know-
ingly, and understandingly consent to the imposition of a prison sentence even if he
is unwilling or unable to admit his participation in the acts constituting the crime.
Nor can we perceive any material difference between a plea that refuses to admit
commission of the criminal act and a plea containing a protestation of innocence
when, as in the instant case, a defendant intelligently concludes that his interests
require entry of a guilty plea and the record before the judge contains strong evi-
dence of actual guilt. Here the State had a strong case of first-degree murder against
Alford. Whether he realized or disbelieved his guilt, he insisted on his plea because
in his view he had absolutely nothing to gain by a trial and much to gain by pleading
(Carolina v. Alford, 1970, p. 37).
Bargaining is “an essential component” of the justice system:
The disposition of criminal charges by agreement between the prosecutor and the
accused, sometimes loosely called “plea bargaining,” is an essential component of
the administration of justice. Properly administered, it is to be encouraged. If every
criminal charge were subjected to a full-scale trial, the States and the Federal Gov-
ernment would need to multiply by many times the number of judges and court
facilities (Santobello v. New York, 1971, p. 260).
Plea bargains are “highly desirable”:
Disposition of charges after plea discussions is not only an essential part of the
process but a highly desirable part for many reasons. It leads to prompt and largely
final disposition of most criminal cases; it avoids much of the corrosive impact of
enforced idleness during pretrial confinement for those who are denied release
pending trial; it protects the public from those accused persons who are prone to
continue criminal conduct even while on pretrial release; and, by shortening the
time between charge and disposition, it enhances whatever may be the rehabilita-
tive prospects of the guilty when they are ultimately imprisoned (Santobello v. New
York, 1971, p. 261)
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the defendant, especially in crimes where the defendant claims the victim is at fault
or shares the blame for the offense (e.g., some sex crimes).
Of course, there are also arguments against the practice. One common argu-
ment is that plea bargaining allows offenders to escape the punishment that is legis-
lated for their crimes: “Men charged with crimes carrying heavy penalties are
treated as if they have committed only minor offenses carrying light penalties. . . .
Justice seems to be bought on the cheap” (Rosett and Cressey, 1976, p. 3). The
widespread use of plea bargaining to reduce penalties may lead “seasoned crimi-
nal” to “conclude that it is worth his while” to break the law and pay the reduced
price for his actions (Dash, 1951, p. 395). However, other commentators assert that
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Prosecutors must honor conditions of bargains:
On this record, petitioner “bargained” and negotiated for a particular plea in order
to secure dismissal of more serious charges, but also on condition that no sentence
recommendation would be made by the prosecutor. It is now conceded that the
promise to abstain from a recommendation was made, and at this stage the prosecu-
tion is not in a good position to argue that its inadvertent breach of agreement is
immaterial. The staff lawyers in a prosecutor’s office have the burden of “letting the
left hand know what the right hand is doing” or has done. That the breach of agree-
ment was inadvertent does not lessen its impact (Santobello v. New York, 1971,
pp. 261–263).10
Threats to seek enhanced charges are valid in plea bargain negotiations:
After arraignment, Hayes, his retained counsel, and the Commonwealth’s Attorney
met in the presence of the Clerk of the Court to discuss a possible plea agreement.
During these conferences the prosecutor offered to recommend a sentence of five
years in prison if Hayes would plead guilty to the indictment. He also said that if
Hayes did not plead guilty and “saved the court the inconvenience and necessity of
a trial,” he would return to the grand jury to seek an indictment under the Kentucky
Habitual Criminal Act, . . . which would subject Hayes to a mandatory sentence of
life imprisonment by reason of his two prior felony convictions. . . . It may be help-
ful to clarify at the outset the nature of the issue in this case. While the prosecutor
did not actually obtain the recidivist indictment until after the plea conferences had
ended, his intention to do so was clearly expressed at the outset of the plea negotia-
tions. Hayes was thus fully informed of the true terms of the offer when he made his
decision to plead not guilty. This is not a situation, therefore, where the prosecutor
without notice brought an additional and more serious charge after plea negotia-
tions relating only to the original indictment had ended with the defendant’s insis-
tence on pleading not guilty. As a practical matter, in short, this case would be no
different if the grand jury had indicted Hayes as a recidivist from the outset, and the
prosecutor had offered to drop that charge as part of the plea bargain (Bor-
denkircher v. Hayes, 1978, pp. 358–361).
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Arguments for and Against Plea Bargaining 321
BOX 11.1
“A Front Row Seat into the Legal System”:
A Student’s Observations Regarding Plea Bargaining
Stacy Walter, one of the author’s students, was a regular observer at her local court. The follow-
ing excerpts from her observations show several factors that are important in plea bargaining.
First, the cases are run-of-the-mill routine cases, which increase the likelihood that plea bar-
gains will be viewed favorably by key justice decision-makers:
The night’s docket list read like a never-ending saga of operating an unsafe vehicle
in the borough of XX, disregarding a police signal and siren, and failure to appear.
The first case called was a failure to appear. This was not the first time this offender
had skipped court. Judge T issued a warrant $500.00 and no 10% [bail]. Next up,
operating a motor vehicle without insurance. The defendant pled “it was a friend’s
car, your honor.” Guilty, $31.00 fine $30.00 court costs. . . .
The defendants also valued plea bargains. Stacy Walter noted that a fourth member of the court-
room drama in this jurisdiction was the court liaison, who actually worked out the deals:
On a side note, as these proceedings were going on, people were constantly wan-
dering in and out of the courtroom doors. They had formed a line to speak to the
court liaison, who was plea bargaining their charges.
The members of the courtroom work group got along well. Even the private attorneys were
friendly with the other members of the courtroom work group. Because they got along, the judge
and attorneys (and the courtroom liaison) were able to work as a team to efficiently dispose of
cases:
Judge T and prosecutor K seemed like a tag team, with their secret teammate, the
court liaison, out in the hallway cutting deals. . . . Many of the private attorneys
hired by the defendants seemed to know Judge T. Judge T wished one attorney good
luck as his wife was expecting a baby any day. Overall, I would say the environment
was well-connected.
The courtroom regulars justified bargaining, saying it kept the courtroom operating smoothly:
Then we began to talk business. They [the court liaison and two police officers she
was interviewing] told me . . . why there are so many plea bargains. They said there
are so many because they want to keep the court running smooth.
Stacy Walter noted the links between assembly-line justice and plea bargaining:
A great deal of what I observed in court was similar to that which I had read in the
textbook. The interaction of the courtroom work group could not have been better
explained or demonstrated. The “assembly line of justice” was up and running in
full speed. Shortcuts were taken in order to keep the docket list running smoothly.
Plea bargains were cut left and right.
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“plea bargaining has proven to be a phantom loophole” because the evidence
shows that plea bargaining does not let serious criminals escape with light sen-
tences (Walker, 2001, p. 159).
Even in 1927, Miller worried that plea bargains meant that defendants’ rights
were trampled because prosecutors, mindful of their records, would “overlook” the
rights of the poor and uneducated by persuading them to give up their right to trial
by pleading guilty. It is important to recognize that most defendants in Miller’s day
were not represented by counsel, as that right was not guaranteed to defendants
until Gideon v. Wainwright in 1963. Miller theorized that defendants without
resources would be targeted for abuse by prosecutors who felt they needed to
improve their conviction rates. Another important distinction between then and
now is that many jurisdictions did not then allow bench trials, so any trials in the
1920s had to be conducted in front of juries (Moley, 1928, p. 102).
In modern times, the practice of plea bargaining has been attacked not for its
use per se, but on grounds that defendants of color often receive less desirable plea
deals than white defendants (Donziger, 1996, p. 112). In California, for example,
two defendants with similar nonviolent criminal histories, accused of burglary and
receiving stolen property in separate incidents, received very different plea deals:
The white defendant was convicted of one count of burglary after the DA dis-
missed the other three charges, and was sentenced to sixteen months in state
prison; the African American defendant was convicted on all four charges and was
sentenced to eight years in state prison (Donziger, 1996, p. 112). A recently
released comparison of plea bargains for white and African American defendants
in 146 capital cases found that 60 percent of white defendants charged with capital
crimes avoided the death penalty through plea bargains in comparison to 41 per-
cent of black defendants (Dorning, 2000). The Justice Department noted that this
disparity alone does not necessarily indicate discrimination, but leading death
penalty researcher David Baldus believes that the results “. . . raise a red flag. . . .
the magnitude of the disparity is very strong” (Dorning, 2000, p. 1).
Another criticism of plea bargaining is related to its use by prosecutors to
pursue “bigger fish,” as mentioned above. This has led to cases in which offenders
who had more information to offer a prosecutor received significantly lighter sen-
tences than their less culpable co-defendants who had little knowledge with which
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The prosecutor benefitted from the regular use of bargains, making him likely to continue the
practice:
The prosecutor racked up a batting average like no other. . . . I have always wanted
to be an attorney. . . . Watching prosecutor K rack up a batting average made me
envious. I want a batting average, too.
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to bargain. For example, in a number of drug cases, women who were peripherally
involved in drug distribution networks received sentences that were years longer
than their heavily involved boyfriends, who used their knowledge to plea bargain
their sentences down (e.g., Johnson, 1995).
Modern critics of plea bargains are more likely to complain that the practice
encourages overcharging by prosecutors (so they can reduce the charges without
hesitation) and that it penalizes those who seek trial (e.g., Felstiner, 1978, p. 309).
These are serious criticisms that may soon be the substance of a petition to the
Supreme Court to review a case dealing with these issues. It is criticisms such as
these that have led to bans on plea bargaining in some jurisdictions. Through the
implementation of strict sentencing guidelines, for example, the federal system has
attempted to do away with plea bargains, but it has been shown that the process
continues (Wray, 1993, pp. 7–8). One way federal prosecutors circumvent manda-
tory sanctions and thus engage in quasi-bargains is to charge drug couriers under
statutes that do not involve mandatory sentences. Federal prosecutors in eastern
New York say they must do this because most couriers have “limited culpability,”
most judges dislike harsh mandatory sentences for “low-level offenders,” and
charging offenders with crimes that involve mandatory penalties increases the like-
lihood of trials that would “overwhelm” the courts (Wray, 1993, p. 7).
Individual jurisdictions have also banned plea bargaining. The best known
are Alaska and El Paso, Texas. Alaska’s attorney general banned plea bargaining
in 1975 (Rubinstein and White, 1978, p. 367). Within a few years, the policy
increased the number of trials but did not affect the rate of guilty pleas or the time
from arrest to the end of trial. Sentences became more severe, but only for those
accused of minor offenses or who had no prior convictions; these “clean kids”
received longer prison terms after the ban (Rubinstein and White, 1978, p. 376).
Sentences for violent offenders, on the other hand, remained the same because they
had been receiving harsh sentences before the ban. The lack of change in the rate of
guilty pleas leads some scholars to surmise that implicit bargaining was still taking
place (Guidorizzi, 1998, p. 775), and some researchers found evidence of explicit
bargains despite the ban (Rubinstein and White, 1978, pp. 370–371). Alaska
removed the ban in 1993, but plea bargaining had been fairly rampant since a 1980
change in charging policy that allowed prosecutors to reduce charges to reflect “the
essence of the conduct engaged in” rather than what the prosecutor “could prove”
(Guidorizzi, 1998, p. 775).
The ban on plea bargaining in El Paso, Texas, lasted only six years (Acevedo,
1995, p. 988). Within three years, the trial rate had doubled and backlog had
increased by 250 percent (Weninger, 1987, p. 277). Some judges complained bit-
terly that they wanted bargaining to return so they could reduce their dockets and
the backlog (p. 306). The backlog was so great that the jurisdiction had to reorgan-
ize its courts to enable the civil court judges to assist with the increases in criminal
trials. Despite the intention to bring about sentencing uniformity, the ban did not
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appear to have any effect on judges’ sentence severity (p. 303). The ban did, how-
ever, increase the length of pre-trial detention (p. 309).
There have been other temporary bans, including Bronx County (New York),
Detroit (Michigan), and the state of California’s ban on bargaining for defendants
charged with “serious” offenses (Acevedo, 1995, p. 988). Undoubtedly, there will
be many bans on the practice in the future; whenever plea bargaining is viewed as
allowing the premature release of offenders, there will be attempts to eradicate its
existence. Any ban will be ineffective, however, unless those who set it in motion
fully understand the effects it will have on the justice system and commit the
resources necessary to deal with those changes.
CONCLUSION
Although not formally recognized until relatively recently, plea bargains have existed
for at least two hundred years and their popularity does not appear to be waning. If
anything, the courtroom work group has come to depend on them as a way to effi-
ciently dispose of the majority of cases that form their workload. But plea bargaining
is more than a way to speed up the assembly line of justice; in many ways, it has
become a way to do justice by mitigating the punishment imposed on many offend-
ers in exchange for admissions of culpability and testimony against others.
In the next chapter, we finally move to the trial itself. It has been a long
process with many steps, but the trial is finally ready to begin. After the jury has
been selected, the two attorneys will present their cases and the judge or jury will
decide the outcome. You will see how all the preceding steps come together for
this—the finale.
D I S C U S S I O N Q U E S T I O N S
1. Some people have said that American justice is no longer adversarial because 90 percent or more
of cases involve guilty pleas. What are some ways that justice can remain adversarial even in
cases where defendants plead guilty?
2. In a class taken by one of the authors of this book, the professor offered a “B” on the final paper to
anyone who did not submit a paper.11 This scenario is somewhat similar to plea bargaining by
prosecutors because the professor would save the time necessary to grade the papers, while the
students would save the time and effort necessary to write the papers. Assuming that offer were
made in this class, would you accept your instructor’s offer? Why or why not? What factors would
influence a student’s choice to take the “B” versus writing the paper? Which students would be
more likely to accept such an offer? Which ones would turn down the offer? How does this example
relate to plea bargaining in the criminal justice system by defense attorneys and prosecutors?
3. Scan your local newspaper for stories involving plea bargains. What reasons were offered by the
prosecution for engaging in plea bargains? What reasons did defense attorneys offer for the
defendant’s accepting a bargain?
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4. Classify the plea bargains you found for question 3 into the three categories: charge, count, and
sentence bargaining. Do you notice any patterns in the types of bargains offered?
5. Scan your local newspaper for stories involving rejected plea bargains. What were the reasons
behind the rejections, and which party was unsatisfied with the bargains?
6. Search your local newspaper for ten stories on recent crimes, trying to find those that present
enough detail so you understand what happened. Assuming you are the local prosecutor, and you
are able to try only eight cases, which two cases would you bargain away? What factors influ-
enced your decisions? For those that lacked enough details for you to be comfortable with a bar-
gain, what factors did you want to know (e.g., level of planning in the offense, personal
background of the offender, etc.)?
7. What effects do modern technology and developments in investigations (e.g., DNA tests) have
on a defendant’s likelihood of accepting a plea bargain versus taking one’s chances at trial? What
do you think will happen as more and more new technologies become available to the American
justice system?
8. How could a prosecutor design a bargain that satisfies his or her needs, the defense’s needs, and
the public?
9. Oh, lucky you! You have just been appointed to the plea-bargaining reform commission for your
state. What guidelines would you suggest to remedy the ills of plea bargaining (you might want
to first think about the problems your state faces with respect to plea bargaining)?
10. Consider what you’ve learned regarding the process of plea-bargaining. Recall that the Supreme
Court held that it was constitutionally acceptable for prosecutors to threaten to add charges
against defendants who refused plea bargains (Bordenkircher v. Hayes, 1978). In this same case,
the Court stated that plea bargaining is a “give-and-take negotiation . . . between the prosecution
and defense, which arguably possess relatively equal bargaining power” (p. 362). Do you think
that the two sides do in fact possess relatively equal leverage during plea negotiations? What are
some of the reasons for your answer? Even if this were true in general across cases, could there
be cases where the government has significantly more power? In such circumstances, how would
this affect plea bargaining?
N O T E S
1. Of course, some defendants who plead guilty still receive the death penalty because plea bargains
often don’t guarantee a particular sentence. The sentencing agent, typically a judge, does not
always follow suggestions made by the prosecution.
2. Though she initially agreed and signed a confession which saved her life, she later recanted, say-
ing she had confessed only because of “fear of the fire” and that she had heard again from the
voices that she was damning herself by recanting (Sackville-West, 1936, p. 336). She was burned
at the stake as a heretic on May 30, 1431, but was canonized as a saint in 1920.
3. This was probably due to officials’ ultimate recognition that the witch scare was in error, rather
than any intended long-term lenience.
4. The defendant was sentenced to death for his crimes, showing that pleading guilty does not
ensure lenient treatment from the court.
5. Author’s Note: Remember that indictments are handed down by grand juries, so that any pre-
sumed abuses by prosecutors should be less likely.
6. Remember, it was once legal to impose death sentences for crimes other than murder or offenses with
serious harm. It was only in 1977, in the case of Coker v. Georgia, that the death penalty was ruled
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unconstitutional for the rape of an adult woman and in 1982, in Enmund v. Florida (1982, p. 797), the
death penalty was held to be an “excessive penalty” for robbers who do not kill their victims.
7. It is important to point out that the evidence in the Alford case was overwhelmingly against him.
One witness testified that Alford had left his house with his gun, saying he was going to kill the
victim, then returned home and stated that he had “carried out the killing” (Carolina v. Alford,
1970, p. 28).
8. Of course, some may argue, based on the Santobello and Goodwin cases, that defendants are not
as “free” to reject bargains as initially assumed, meaning that the practice is not always com-
pletely voluntary.
9. The scholar Frank H. Easterbrook is also a judge, as he is both senior lecturer at Yale law school
and a judge on the United States Court of Appeals.
10. Subsequent cases have shown that depending upon constitutional issues, such as whether a defen-
dant’s plea was made “in reliance on” a prosecutor’s offer of leniency, prosecutors sometimes are
not held to the terms of their deals (e.g., Ejzak, 1991, p. 107). In one case, for example, the pros-
ecutor offered a reduced penalty in exchange for the defendant acting as an informant against
others; the defendant cooperated, but the prosecutor withdrew the offer (People v. Navarroli,
1988). In another case, a defendant was promised reduced charges if he cooperated in the prose-
cution of another individual; his cooperation resulted in the arrest of the sought-after killer, but
the prosecutor never called him to testify and failed to honor the agreement (People v. Marquez,
1981). In both cases, the courts upheld the prosecutions’ actions as acceptable. What distin-
guished these two cases from plea bargains was that neither involved the actual pleading guilty in
exchange for a reduced penalty (Ejzak, 1991). Since no constitutional rights were involved in the
deals, the prosecutors were not legally obligated to honor their deals.
11. We will never know whether the professor was serious when he made the offer because none of
the students in the class accepted the deal. They all chose to write a paper.
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Step 12
Your Day in Court:
The Trial Begins
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❖
If you are the defendant in a trial, you are probably not in the state of mind to
appreciate the fact that you are about to participate in a rather remarkable court-
room proceeding that represents both the ideals and the (sometimes quite different)
realities of our legal system. Although you have the choice of being tried by a
judge without jurors in a bench trial, if you are like most defendants who go to
trial, you have probably opted for trial by a jury of your peers. As you may recall
from Step 7, only 3 percent of trials are bench trials (adapted from Boland and
Sones, 1986, pp. 6, 26). As you face the prospect of trial by jury, however, you may
well appreciate the differences between the modern trial you are about to experi-
ence and the trials of olden days, including trial by ordeal and trial by battle (see
Step 4).
In this chapter, we will briefly continue tracing the development of modern
American jury trials from pre-Revolutionary times, and then focus on the modern
trial process from the perspective of the jury. Since what matters most in a jury trial
is how jurors perceive the unfolding criminal justice drama and its key actors, a
jury-focused perspective will help illuminate the realities of the trial process. As
we go through the steps of the modern trial process (see Figure 12.1), it will help to
keep in mind what we already know about the duties and dilemmas of key players,
such as the judge, the prosecutor, and the defense attorney.
As we watch the process of trial unfold, it may become clearer why trials can
sometimes be quite lengthy. The length of the average criminal trial varies by juris-
diction, but commonly ranges between three days and one week. Occasionally, a
trial might last much longer, depending upon the number of witnesses called to tes-
tify and the amount of physical evidence presented. The longest and costliest trial
in America was the McMartin preschool case, which lasted thirty months, and was
then followed by two additional trials because of hung juries on some of the
charges, making the total length of the case seven years.
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TRIAL BY JURY IN PRE-REVOLUTIONARY AMERICA
When the colonists came to America, they imported the concept of trial by jury as
part of the package of English legal concepts and procedures. Since America was
still a colony of the British Crown, the colonists’ early experiences with trial by
jury were often filled with difficulty. When a colonist was accused and tried, jurors
were generally chosen by the King’s officials, not from the accused’s neighbors (or
peers). These officials usually chose jurors partial to the Crown’s interests, so get-
ting justice was nearly impossible in the eyes of independence-minded colonists.
Yet the colonists could see the potential for the jury trial, if the jurors were impar-
tial or consisted of even numbers of those partial to the prosecution and those par-
tial to the defense (Abramson, 1994).
TRIAL BY JURY AFTER INDEPENDENCE
After the American Revolution, the framers of the Constitution considered trial by a
jury of peers so important that the Constitution provides the right to trial by jury for
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Trial by Jury After Independence 331
FIGURE 12.1 Steps in the trial process
• Pre-trial motions
• Attorneys prepare for trial
• Jurors summoned to courthouse for jury duty
• Jury selection: Voir dire
• The trial begins
• Prosecutor’s opening statement
• Defense attorney’s opening statement
• Governments’ case-in-chief (presented by
the prosecutor)
• Defense cross-examination of the
government witnesses
• Defense case presentation
• Government’s cross-exam of defense
witness
• Prosecution closing statement
• Defense closing statement
• Prosecution rebuttal
• Defense rebuttal
• Jury instructions
• Jury deliberation
• Announcement of verdict
• Sentencing (next chapter)
• Possible appeal
Plea
Bargaining
Plea bargaining
reaches jury deliberation
in some rare cases
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all crimes except impeachment; the Sixth Amendment (1791) provides the right to
be tried by an impartial jury, meaning a fair and unbiased one; the Seventh Amend-
ment (1791) grants this right in civil cases involving twenty dollars or more.
The Supreme Court originally interpreted these constitutional provisions as
applicable only in federal trials, reasoning that trial by jury was not a “fundamen-
tal” right, and thus was not applicable to the states through the Fourteenth Amend-
ment’s due process clause (Palko v. Connecticut, 1937). This meant that states
were not required to provide jury trials, but could choose to do so. In Duncan v.
Louisiana (1968), the Court reversed its position, ruling that trial by jury in crimi-
nal cases is a fundamental right applicable to the states. The justices’ reasoning in
the Duncan case emphasized the importance of jury trials as part of due process
and as a significant aspect of a participatory democracy.
In subsequent cases, the Supreme Court clarified the scope of the right to trial
by jury, finding it applicable in any case involving a minimum possible sentence of
six months’ incarceration, and even in some cases with a shorter penalty. In Lewis
v. United States (1996), however, the Supreme Court ruled that defendants who are
convicted of multiple petty offenses for which the combined total length of incar-
ceration would be greater than six months are not entitled to a jury trial. For civil
matters, however, the Court has not extended the Seventh Amendment requirement
of trial by jury to the states, instead leaving state governments to decide whether
they wish to require juries in civil trials.
MODERN-DAY TRIALS
We’ve seen the reasons why the right to trial by jury is a fundamental part of due
process in our court system. Now let’s take a closer look at the trial itself, begin-
ning with a fundamental question: What is the purpose of a jury trial? Many people
might answer “To find the truth, of course.” That is indeed the purpose, yet this pre-
sumes that there is a single true version of events, and that the adversarial format of
a criminal trial is the best way to discover the truth.
However, a trial can also be conceptualized as a forum where differing inter-
pretations of events are offered by each side, and jurors sift and sort and select the
version of events that seems most plausible. The jurors then begin the complicated
process of reconciling the facts of the case as they perceive them with the provi-
sions of the law, the dictates of their consciences, and the compromises hammered
out during jury deliberations. The resulting verdict, therefore, reflects a particular
subjective construction of “the truth” as much as—perhaps more than—it repre-
sents a discovery of an “objective” truth. In this sense, the purpose of a jury trial
may be to provide a forum for presenting competing versions of the truth, and pro-
vide a means both practical and symbolic of pronouncing that justice has been
served. This illustrates the role that trials play as social dramas where larger socie-
tal issues can be examined and addressed in the context of specific cases.
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THE TRIAL PROCESS: PRE-TRIAL ACTIVITIES
Discovery
This is the process whereby the prosecution and the defense exchange information
in order to prepare for trial. As part of discovery, each side may interview and take
depositions from witnesses. A deposition is an “out-of-court statement given
under oath by any person involved in the case” (American Bar Association, 2001).
Although the goal of discovery is to enable each side to anticipate the evidence the
other side will present, in order to avoid unpleasant surprises (American Bar
Association, 2001), sometimes surprises occur nonetheless. For example, it may
be revealed later that information that should have been disclosed to the defense
was not, either inadvertently or deliberately. Sometimes, a subpoena requesting
all relevant papers is answered with a slew of unsorted papers crammed into
cardboard boxes. This tactic may cut into the opposition’s preparation time, by
requiring them to spend time wading through a paper flood to identify relevant
documents.
Ongoing Negotiations Between Defense and Prosecution
As we saw in the last chapter, most criminal charges are settled through plea bar-
gaining. When the defense opts to go to trial, however, that does not necessarily
mean the end of negotiations. Even as the defense and prosecution prepare to go to
trial, ongoing attempts to reach a settlement occur, and negotiations can continue
even as the trial begins and after it is well underway. In one case, for example, a man
pleaded guilty to stealing Malcolm X’s diary three days into his trial for the theft
(Finkelstein, 2000). In some rare cases, plea bargains are finalized while the jury is
out deliberating.
Pre-Trial Motions
Before the trial actually begins, the defense and prosecution will submit relevant
pre-trial motions to the court for the judge to decide upon. Motions are requests to
the court for a ruling on a legal matter. For example, the defense may file a motion
asking the judge to dismiss the case on the basis of insufficient evidence. The pros-
ecution will then file a rebuttal requesting the court not grant the motion, and
explaining why the case should proceed. Attorneys for either side may file a
motion requesting that the trial date be postponed in order to give them more time
to study the issues in a case or locate a key witness. Another common petition is a
motion to discover, which is used to seek information held by opposing counsel.
See Box 12.1 for an example of a pre-trial motion that is relatively uncommon,
except in cases attracting intense publicity.
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334 Your Day in Court: The Trial Begins
BOX 12.1
Pre-Trial Motions for Change of Venue
in the Oklahoma City Bombing Trial
The bombing of the federal building in Oklahoma City, in which 168 people died, received
extensive and in-depth media coverage before and after the trial of suspects Timothy McVeigh
and Terry Nichols. News media around the world described the wreckage of the building, pos-
sible motives for the bombing, the search for survivors, and the horror and grief of victims and
their families. The horrific and unique nature of the crime made the smallest details of the event
the subject of widespread coverage, which was often emotionally laden and intensely detailed.
Not surprisingly, local media in Oklahoma, especially in Oklahoma City itself, provided satura-
tion coverage of the bombing and its aftermath, including the capture and identification of Tim-
othy McVeigh.
As McVeigh’s defense team prepared for trial, people around the world saw images of the
death and destruction caused by the bombing. Given such intense and emotionally evocative cov-
erage, the defense team questioned whether defendants McVeigh and Nichols could receive a fair
trial in the Oklahoma City venue. Could a truly impartial jury be drawn from citizens of the local
community, given the widespread impact of the bombing and the extensive media coverage?
The defense attorneys hired social scientists to investigate this question through empirical
research on the newspaper coverage in four potential trial venues: Oklahoma City, Tulsa, and
Lawton (all in Oklahoma), and Denver, Colorado. Researchers at the University of Nebraska,
Lincoln, conducted a content analysis of newspaper media coverage of the bombing. They
assessed the nature and emotional content of the coverage, as well as the sheer volume of cover-
age in each locale, by reading a random sampling of 939 articles about the bombing published
in the newspapers of each city between April 20, 1995, and January 8, 1996. Each newspaper
article was systematically coded along a number of dimensions, including whether McVeigh
and Nichols were portrayed as the embodiment of evil or in other demonic imagery, clearly neg-
ative characterizations of the defendants.
The results of the study showed that the nature of the media coverage in the Oklahoma
cities was substantially more emotionally laden and prejudiced than that which appeared in the
Denver paper. The scientists concluded that the nature and extent of the pre-trial publicity in the
venue where the trial was to be held was such that it would be substantially impossible to seat an
impartial jury.
The defense attorneys decided to file a motion for change of venue—that is, a request to
change the location of the trial. For both legal and practical reasons, a request for change of
venue often requires the defense to provide solid evidence supporting the argument that the trial
should be conducted at another location. The research demonstrated that there was more intense
media coverage of the issues in Oklahoma, and that not surprisingly Oklahomans were more
familiar with and had stronger attitudes about the bombing, the guilt of the suspects, the nature
of the evidence that had been amassed, and other associated issues. The defense motion for
change of venue, using this evidence in support of the motion, was granted. Thus, the trial was
ultimately held in Denver, and both defendants were found guilty (Studebaker, Robbennolt,
Pathak-Sharma, & Penrod, 2000).
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Jury Selection: The Legal Foundations
The right to trial by an “impartial” jury raises many questions concerning jury
selection and composition. A common method of jury selection before 1968 was
the “key man” system, relying on prominent citizens in the community to serve.
This meant many citizens were excluded from jury duty, despite being legally eli-
gible. Most notably, in Strauder v. West Virginia (1880), the Supreme Court struck
a state law excluding African American men from jury duty as a violation of equal
protection. Thus, by law, the importance of fair jury selection was explicitly estab-
lished. However, in fact, the practice of excluding minorities from jury service con-
tinued unacknowledged by the Court, as illustrated by its decision in Swain v.
Alabama (1965) allowing exclusion of potential jurors on the basis of race.
Similarly, although women became jury eligible between 1870 and 1940
(depending on locale), most states continued to exclude women from jury pools
(from which jurors are drawn) (Abramson, 1994). The Supreme Court addressed
this in Taylor v. Louisiana (1975), striking the practice of including women in jury
pools only if they had contacted the court and asked to have their names included
on jury lists.
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The Trial Process: Pre-Trial Activities 335
One of the first Vermont juries to include women as well as men was convened in Barre Municipal
Court. Women were not allowed to serve as jurors in Vermont until 1943. The issue of whether
women could or should serve as jurors was debated until well into the twentieth century. Some people
argued that women should be protected from the unpleasantness of courtroom trials, while others
argued that women were intellectually or morally unfit to serve as jurors. The debate over women’s
jury service clearly illustrates the central role that gender stereotyping has played in shaping women’s
participation in the criminal justice system, whether as jurors, judges, attorneys, or police and correc-
tional officers. SOURCE: Courtesy of the Aldrich Public Library, Barre, Vermont.
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In 1968, Congress enacted the Jury Selection and Service Act, requiring that
federal jury pools be comprised of citizens drawn at random “from a representative
cross section of the community.” In Taylor v. Louisiana (1975), the Supreme Court
extended this requirement to states. The random selection requirement substan-
tially changed the methods used to create jury pools, but did not address how indi-
vidual jurors are selected during voir dire (jury questioning).
In Holland v. Illinois (1990), the Supreme Court clarified that it is the process
of selecting the jury pool that must be representative, rather than juries themselves.
This is a crucial distinction to keep in mind. Many people mistakenly think that a
“jury of one’s peers” refers to a jury made up of people who share the defendant’s
ethnic and gender background. This is not the case! If the definition of “peers”
referred to similarities between defendant and jurors, then a defendant with a prior
criminal conviction could surely make the case to have some ex-felons on his or
her jury. Instead, a jury of one’s peers refers to the idea that defendants should be
tried by fellow citizens from the same community. Therefore, if the process of jury
selection has been carried out in accordance with legal requirements, the resulting
jury is considered a jury of one’s peers, even if the defendant is an Asian American
woman in her twenties and the jury consists of mostly white middle-aged men.
THE GOAL OF REPRESENTATIVENESS
Why do we care about the representativeness of the jury selection process? What
are the legal assumptions underlying the requirement of a representative jury selec-
tion process?
One of the major assumptions is that the selection process, if drawing from a
representative cross section of the community, will lead to a more diverse jury
(though the jury itself will not be representative). Another assumption is that jurors
from different demographic groups may have significantly different perspectives on
the case: Women may see the issues differently than men, for example, and people
from different ethnic groups sometimes bring differing perspectives.
Yet research shows that jurors’ demographic characteristics, although signifi-
cant influences on the verdict in some cases, are less important than the evidence in
many cases. The key question is how (to what degree) such characteristics are
important in any particular case. The assumption that jurors’ verdicts can almost
always be accurately predicted based on demographic characteristics is not sup-
ported by research: Not only do jurors not necessarily vote according to their
demographic characteristics, but demographic groups are themselves not uniform
in their beliefs. In addition, every juror simultaneously represents a variety of dif-
ferent demographic groups defined by age, ethnic background, gender, education
level, sexual orientation, political and religious attitudes, social class, and others.
However, the assumption that demographics have nothing to do with verdict
choices is inaccurate as well; since we are a product of our experiences, diversity
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matters. For example, if a juror shares the same ethnicity as the defendant, it may
increase the likelihood that the juror will acquit or, on the other hand, convict.
Although often assumed, “group loyalties” may not exist in reality. For example,
women jurors are not necessarily the “ideal juror choice” for the prosecution in a
rape case. While some women may indeed be more likely to sympathize with a
female victim, under some circumstances women may actually be less sympathetic
toward the victim. For example, some women may imagine themselves in the situ-
ation and feel that they would have acted differently, thus increasing the likelihood
that they may blame the victim.
The fact that juror demographics are not necessarily tightly linked to their
verdict choices is in fact quite appropriate, given that verdicts are not supposed to
reflect the influence of extra-legal factors. We can recognize that personal experi-
ences influence jurors’ perspectives but do not necessarily determine jurors’ behav-
ior. Whether experiences are such a powerful influence that they essentially
determine a juror’s verdict choice depends upon a complex constellation of factors,
including the political and social atmosphere at that time and place, and the issues
in the case. Certainly, all-white juries in the American South during the first half of
the twentieth century illustrated all too well how racism in the jury box—which
was a reflection of the racism in the larger community—sometimes left little
chance for African American defendants to receive a fair trial.
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The Goal of Representativeness 337
Who will fill these seats? The process of jury selection illustrates the complexities involved in draw-
ing jurors from a “representative cross-section of the community,” as required by law. Consider the
importance of the jury in both criminal and civil cases. Who would you want to fill these seats in your
trial? SOURCE: Courtesy of Jon’a Meyer.
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However, it is also critically important to avoid assuming that all members of
a given demographic group share the same perspective, attitudes, or experiences.
Certainly, they may share some common experiences, but individual differences
also exist. Just as all teenagers and young people do not think alike, all women or
all men or all members of a given ethnic group do not have the same attitudes or
identical experiences.
Public controversy surrounding high-profile criminal cases, in particular cases
raising questions about the relationship between race, ethnicity, and the fairness of
the legal process, suggests another reason for caring about representativeness.
While verdicts from relatively homogenous juries may be greeted with skepticism
by significant segments of the public, verdicts from more diverse juries could poten-
tially—although not necessarily—be perceived as having more legitimacy.
Steps in the Process of Jury Selection
So, just how is a jury selected? To begin with, using lists from voter registration
and the Department of Motor Vehicles, each county’s jury management personnel
create a master list of county residents. From this list, the names of people who will
receive a summons for jury service are randomly drawn. Folks whose names are
not on these lists have no chance of being called for jury duty, so people who are
homeless or who move frequently, such as students or seasonal employees, are
often underrepresented on the lists. In an attempt to capture a larger cross-section
of residents, some jurisdictions use additional sources, such as lists of people
receiving social security, general assistance (welfare), or unemployment benefits.
After the jury summonses are sent out, more prospective jurors are in effect
“weeded out” of the jury selection process in the following ways:
• The person does not respond to a summons for jury service.
• The person is not eligible for jury duty (e.g., he or she moved to another
county).
• The person is exempt (e.g., a peace officer, in some jurisdictions).
• The person is excused (e.g., for medical reasons).
The folks who remain after this stage comprise the venire (the jury panel).
This is where the process of voir dire begins—where the judge and/or the attor-
neys question prospective jurors to determine whether they should be seated on the
jury. “Voir dire” means “to speak the truth” in French, and therefore implies the
process of identifying any biases or prejudices on the part of the jury panel.
“Traditional” Jury Selection
How are jurors typically selected? “Traditional” jury selection is based on lawyers’
experiences, intuitions, hunches, and implicit personality theories—that is, their
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beliefs that juror characteristics, such as ethnicity, gender, age, certain experiences,
and even nonverbal demeanor indicate potential attitudes and behavior that may or
may not favor their side. Box 12.3 shows how Clarence Darrow, the famous
defense lawyer, chose jurors in his cases.
Scientific Jury Selection
This refers to the use of social science techniques to assist attorneys in selecting
jurors and/or developing persuasive trial strategies to present the case. The goal is
to systematize jury selection, in order to help maximize the chances of avoiding
jurors unfavorable to one’s side while identifying jurors who are favorable.
Common techniques of scientific jury selection (SJS) include surveying com-
munity members and holding focus groups (discussion groups) to gauge their atti-
tudes and reactions on issues crucial to the trial. For example, both sides in the
criminal trial of O.J. Simpson were interested in potential jurors’ attitudes and
experiences with domestic violence, their beliefs about scientific evidence (such as
DNA samples), their perceptions of police officers and police credibility, their feel-
ings about celebrities, and their potential race or gender sympathies. Research with
residents of the community in which the trial will be held should help identify the
types of citizens who would make the most favorable jurors. The research is con-
ducted with residents in the community from which the actual jurors will later be
drawn; research is not done with actual jurors themselves, for legal and ethical rea-
sons. However, the use of scientific jury selection techniques with potential jurors
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The Goal of Representativeness 339
BOX 12.2
Excuses, Excuses . . .
Some people will say almost anything to avoid their civic duty, and jury managers and their staffs
have heard just about every excuse in the book. One jury manager recalls that late one morning, a
group of people summoned to the courthouse for jury duty was still sitting around the jury
assembly room, waiting to see if they would be called to a courtroom. As the morning wore on, a
young couple from the group came up to the counter to ask the jury manager whether the woman
could be excused. Time was of the essence, the young woman explained, because she and her
boyfriend were trying to become parents. That meant, she said, that they were timing their
attempts to coincide with particular times of day when the woman’s fertility was likely to be
greatest—and here the young couple hugged and kissed to demonstrate the sincerity of their
intentions. So, said the young woman, the morning was wearing on, and the best timing for
potential parenthood was going to be sometime soon—in the next few hours, in fact. So, could
she please be excused so that she and her boyfriend could go and proceed with parenthood plans?
“You’ll have to tell it to the judge,” said the jury manager, explaining that the law requires
that citizens who wish to be excused on the scheduled day of their jury duty must make this
request to a judge. (Personal communication with author.)
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BOX 12.3
Traditional Jury Selection
Clarence Darrow was a famous defense attorney who represented controversial defendants
such as Socialist presidential candidate Eugene Debs, Tennessee school teacher John Scopes,
and teenaged murderers Leopold and Loeb. Darrow, an ardent opponent of capital punishment,
was known for his fiery oratory in the courtroom and his skill as a litigator. As you read this
excerpt from Darrow’s writings, think about what kinds of stereotypes appear to be illustrated
by his assertions.
Choosing jurors is always a delicate task. The more a lawyer knows of life, human nature, psy-
chology, and the reactions of the human emotions, the better he is equipped for the subtle selec-
tion of his so-called “twelve men, good and true.” In this undertaking, everything pertaining to
the prospective juror needs to be questioned and weighed: his nationality, his business, religion,
politics, social standing, family ties, friends, habits of life and thought; the books and newspa-
pers he likes and reads, and many more matters that combine to make a man; all of these quali-
ties and experiences have left their effect on ideas, beliefs and fancies that inhabit his mind. . . .
Involved in it all is the juror’s method of speech, the kind of clothes he wears, the style of hair-
cut, and, above all, his business associates, residence and origin. If a criminal case, it is practi-
cally always the poor who are on trial. The most important point to learn is whether the
prospective juror is humane. This must be discovered in more or less devious ways. As soon as
“the court” sees what you want, he almost always blocks the game.
Let us assume that we represent one of “the underdogs” because of injuries received, or
because of an indictment brought by what the prosecutors name themselves, “the state.” Then
what sort of men will we seek? An Irishman is called into the box for examination. There is no
reason for asking about his religion; he is Irish; that is enough. We may not agree with his reli-
gion, but it matters not, his feelings go deeper than any religion. You should be aware that he is
emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in
the dock; really, he is trying himself. You would be guilty of malpractice if you got rid of him,
except for the strongest reasons.
If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and
critically sits down, let him go. He is cold as the grave; he knows right from wrong, although he
seldom finds anything right. He believes in John Calvin and eternal punishment. Get rid of him
with the fewest possible words before he contaminates the others; unless you and your clients
are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your
client most likely is guilty.
If possible, the Baptists are more hopeless than the Presbyterians . . . you do not want
them on the jury, and the sooner they leave the better. The Methodists are worth considering;
they are nearer the soil. Their religious emotions can be transmuted into love and charity. They
are not half bad; even though they will not take a drink, they really do not need it so much as
some of their competitors for the seat next to the throne. If chance sets you down between a
Methodist and a Baptist, you will move toward the Methodist to keep warm.
Beware of the Lutherans, especially the Scandinavians; they are almost always sure to
convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty
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during voir dire is illustrated by the use of detailed jury questionnaires and probing
questions from attorneys. Such detailed information gathering has led to charges
that such practices may intrude on the privacy of potential jurors.1
Scientific jury selection rests upon several critical assumptions, including the
following:
• Jurors’ behavior reflects or is at least consistent with their attitudes.
• Links between individual characteristics and attitudes on case issues in
community members will be similar for actual jurors.
• Use of questionnaires, surveys, and questioning during voir dire can accu-
rately measure attitudes and uncover biases.
• Juror attitudes significantly influence the verdict.
In most of the criminal cases where SJS techniques have been used by the
defense, defendants have been acquitted, convicted on lesser charges, or the jury
deadlocked. For example, in the McMartin preschool case, the defense used scien-
tific jury selection techniques to help identify the most promising types of jurors in
an attempt to combat the potentially prejudicial effects of extensive pre-trial pub-
licity. Based on this research, the defense attempted to get jurors from certain eth-
nic groups (African American, white, or Asian) rather than others (Hispanic,
Native American). The defense also focused on male jurors, and jurors with a rela-
tively high education level. The McMartin defense also attempted to choose jurors
with particular attitudes on issues relevant to the case; for example, jurors who
believed that it was possible for children to be taught to testify about things that
never happened (Fukurai, Butler, and Krooth, 1993). In the end, the McMartin
defendants were acquitted on most charges. The jury deadlocked on fourteen other
charges against one of the defendants.
Scientific jury selection is a controversial practice for several reasons, and it
is employed relatively rarely in criminal trials compared to its use in civil trials.
Some proponents of SJS believe it is very effective, but the results of the limited
amount of research experimentally comparing traditional and scientific selection
strategies suggests it’s a toss-up (Horowitz, 1980; Nietzel and Dillehay, 1986).
However, in some circumstances, SJS might be significantly more effective than
traditional jury selection techniques: in cases where the evidence is equivocal; for
certain types of civil litigation or political cases; where community sentiment
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The Goal of Representativeness 341
and go down the docket. He learns about sinning and punishing from the preacher, and dares not
doubt. A person who disobeys must be sent to hell; he has God’s word for that.
As to Unitarians, Universalists, Congregationalists, Jews and other agnostics, don’t ask
them too many questions; keep them anyhow, especially Jews and agnostics. . . .
Source: From How to Pick a Jury by Clarence Darrow, quoted in Esquire, May 1936.
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about the case has been shaped by extensive media coverage. The use of SJS tech-
niques together with traditional methods, so that jurors selected only if both meth-
ods indicate they would be acceptable, can boost chances of making good juror
selection. Perhaps the most effective role for SJS is in helping attorneys develop
the best case presentation. For example, SJS can provide invaluable data to help
attorneys decide the best, clearest, and most accessible way to present complex or
technical legal and scientific information, or the most understandable way to
arrange the sequence of arguments and evidence presentation.
The debate over the effectiveness of SJS raises complex ethical questions that
are not resolvable through empirical research. To the extent that scientific jury
selection is an effective tool in some circumstances, does this provide some defen-
dants with an unfair advantage over those without the resources to employ “scien-
tific” techniques? The response most often heard is that defendants already vary in
the resources available to them to marshal tools for their defense, such as the most
competent counsel, the services of defense investigators, and the services of expert
witnesses. To the extent that defendants with greater resources enjoy an advantage
over other defendants, the issue of inequality is an old and persistent one, and access
to SJS research is merely another example of an already entrenched problem.
Voir Dire: “To Speak the Truth”
The purpose of voir dire is to question prospective jurors in order to weed out peo-
ple who would not be impartial. In reality, voir dire also provides the attorneys the
opportunity to try to identify jurors who will be sympathetic to their side, and those
who may favor the opposition. The process of questioning prospective jurors can
also provide each side with a better idea of the “game plan” the opposition will use
at trial. For example, during jury selection in a case where a woman stands accused
of killing her husband, the prosecution team may learn that the defense is planning
to present information that the accused was a victim of domestic violence as part of
its trial strategy.
Depending upon the jurisdiction, the judge may do most of the juror ques-
tioning, or the attorneys may be the primary questioners (see Box 12.6). In some
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BOX 12.4
SJS and the O.J. Simpson Criminal Trial
During jury selection for the criminal trial of O.J. Simpson, prosecutor Marcia Clark selected
juror Jeannette Harris. Clark thought that the domestic violence issues the prosecution would
raise in the case would resonate with Harris, because of Harris’s identity as an African Ameri-
can woman. Clark’s decision went against the recommendation of the prosecution’s jury con-
sultant, who argued that this was a questionable assumption (Davis and Davis, 1995).
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cases, prospective jurors are asked to fill out questionnaires indicating their atti-
tudes and experiences with issues in the case. Jury questionnaires can run from a
few pages to dozens of pages, depending upon the complexity of issues in the case.
For example, in the trial of John DeLorean, the forty-two-page jury questionnaire
contained ninety-nine questions (Brill, 1989, p. 232)
The voir dire phase of jury selection provides an interesting contrast to earlier
steps in the process of jury selection, where the focus on the representativeness of
the selection process requires random selection of prospective jurors. In contrast,
jury selection during voir dire is anything but random, as attorneys for each side
attempt to choose jurors they favor and exclude those they believe could be biased
against their case. So how does the juror selection process become so selective?
Attorneys have two ways they can “strike” a prospective juror off the panel.
First, an attorney can “challenge” a juror “for cause.” Attorneys have an unlimited
number of challenges for cause. This means that the attorney asks the court to
excuse the juror from service because the attorney believes that the juror would be
biased for a particular reason. For example, voir dire may reveal that a potential
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BOX 12.5
The Unwanted Juror
Some years ago in a Massachusetts prosecution for assault with intent to murder, one seat
remained to be filled on the jury after the defense had expended its final challenge. The man
called to occupy it was, as his informational questionnaire disclosed, a police lieutenant. In the
“Remarks” section he had written: “I once investigated and prosecuted a case of assault with
intent to murder.”
Before the lieutenant could enter the jury box, defense counsel was, understandably, ask-
ing the judge to excuse the juror “for cause.” However, because the juror had sworn to his
impartiality during the usual pre-empanelment routine the judge denied the request.
As the trial went on, the evidence seemed to the judge to be exceptionally strong, and he
silently anticipated a conviction. At the end he did not pick the foreperson for the jury (as many
judges do) but instead left that choice to the jurors. They selected the lieutenant and returned
after only an hour’s deliberation.
“What say you, Mr. Foreman?” the clerk intoned in language unchanged since John
Adams’s day. “Is the defendant guilty or not guilty?”
Promptly and loudly the lieutenant replied, “Not guilty.” After the defendant’s discharge
several jurors, including the lieutenant, asked to speak to the judge. “We were wondering,” said
a woman, “why the government brought this case; it seemed pretty weak to us.” “I’ll second
that,” said the lieutenant. “It’s the worst, sloppiest investigation I’ve seen in seventeen years as a
police officer. They should be ashamed at having wasted everyone’s time.”
“Well,” said the judge, “cases aren’t always predictable.” And, he might have added, nei-
ther are juries—or jurors. (Zobel, 1995)
Source: Reprinted by permission of American Heritage, Inc., 1995.
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BOX 12.6
A Personal View of Voir Dire
The courtroom was full, with about sixty people sitting on the plain wooden benches. Some
were looking around with interest, obviously curious about the jury selection process that was
about to begin. Others had already opened their paperbacks and resumed the reading they had
begun that morning in the jury assembly room. As prospective jurors, we knew only that we had
been assigned to go to a courtroom where a criminal case was to be tried; we knew no other
details. After the bailiff led us to the courtroom and we were seated, the judge introduced him-
self and explained that some of us would be randomly selected to come up and be seated in the
jury box, so that the attorneys in the case could begin the process of questioning the jury. The
jury selection process would continue until there were twelve jurors and two alternates selected
for the case.
I was one of the people called during the first round of jury questioning, and I could feel
my fellow citizens’ eyes on me and the other prospective jurors as we took our seats in the jury
box. The palpable but unspoken question was “will I be next?”
The prosecutor and defense attorneys introduced themselves, and we got our first look at
the defendant. The judge explained a little bit about the process, and asked if there was any rea-
son that we could not serve, if selected. One man quickly raised his hand and asked to be
excused, stating that he had a lower back condition that prevented him from sitting in the same
position for long periods of time. The judge asked him a few questions about this but quickly
granted his request to be excused. A few other people wanted to be excused, and the judge
granted most of these requests.
The judge and attorneys then began systematically questioning each person in the jury
box, one individual at a time. During questioning, all eyes in the courtroom—the attorneys, the
judge, the defendant, the other potential jurors in the courtroom—were focused on the individ-
ual responding from the jury box. “What’s your name? What is your occupation?” the judge
would ask, and then the attorneys would take turns asking questions that could give them a
sense of who we were, what our attitudes toward the key issues in the case would be. “Do you
have children?” asked the defense. Both sides asked questions about gun ownership and atti-
tudes. As the questioning continued, the questions provided an interesting glimpse of the case.
It appeared the defendant was an ex-felon who was being charged with possession of a firearm,
which had been left unattended and could have endangered a child who came upon it. However,
no one had actually been injured.
At some point in the questioning, an attorney for one side or the other might stop and con-
fer with someone else, and after that the attorney might ask the judge to excuse the potential
juror who had just been questioned; alternatively, the attorneys for both sides would state that
“This juror is acceptable to us,” and the questioning would begin with a new prospect. Now it
was my turn, and I was surprised at the hint of nervousness I felt. I had long been accustomed to
public speaking, usually in front of far larger groups than this; yet the solemnity of the circum-
stances felt quite different than anything I’d experienced before.
“What is your occupation?” “Criminal justice professor? How interesting . . .” “What
kind of courses do you teach?” “Oh, you say you teach a course on jury selection and decision-
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juror had been a crime victim, or knows one of the participants in the case. During
voir dire in a civil case observed by one of the authors, one man was dismissed
after he told the judge that he himself had a lawsuit pending against the defendant,
and a woman was excused when she announced that she knew the plaintiff’s attor-
ney from church. It is easy to see how these individuals may be less than fully
impartial because of such connections.
Much more controversial is the use of peremptory challenges to “strike”
prospective jurors. Attorneys for each side have a limited number of “perempto-
ries” that they can exercise, depending on the jurisdiction and the complexity of the
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The Goal of Representativeness 345
making?” “And your dissertation topic was jury decision making in criminal cases?” (Audible
titters from members of the courtroom audience).
To my surprise, I was not challenged for cause, and I happily settled in to watch as my fel-
low prospective jurors were questioned. However, as the nature of the case became clearer, I
started to have misgivings. The case appeared to present issues that were startlingly similar to
the issues I had researched for my dissertation.
At this point, the judge ended the questioning of this batch of potential jurors by asking all
of us if we knew anyone else in the courtroom. A young man seated two rows in front of me in
the jury box raised his hand. “I know Dr. Grant. She was one of my instructors . . .”
I peered from the back row of the jury box. I had thought the fellow looked vaguely famil-
iar, but only vaguely. One of the attorneys apparently found this connection interesting. “So tell
us,” he asked the young man “what course did you take with Dr. Grant?” “When was that—a
couple of years back?”
I still had little memory of this particular former student, but I felt for him as his academic
life was being probed in front of a whole bunch of interested and evidently amused strangers. I
was not prepared for the next question the attorney asked of my former student: “What grade
did you get in Dr. Grant’s class?” “You got a ‘C,’you say?” At this, I could hear suppressed giggles
from some members of the audience. Oh dear, I thought. And anyway, how was that relevant to
the person’s potential to be a good juror?
After that, it appeared that both the student and I were going to be on the same jury,
because neither attorney objected to our university connection. But I knew what I had to say
when the judge asked a final question of all of us. “Is there any reason you feel you could not
serve on this jury? If so, please speak up.”
I raised my hand. I briefly explained my increasing misgivings about serving as a juror in
this particular case, because while I believed that I could be a fair and impartial juror, I knew
that my fascination with the particular issues presented in this case from a research perspective
could distract me if I were to serve. Not only would I be thinking about the issues of the case
from the perspective of a citizen serving as a juror, I would also be examining the issues from
the perspective of a jury researcher who had spent much time studying cases that presented very
similar issues to this one: “Looking in from the outside,” as it were. Regretfully, I asked to be
excused, and I was. As I left the jury box, I wondered how the case would turn out and what the
experience of serving in the case would be like for the other people selected as jurors. I silently
wished them good luck as I walked out of the courtroom, feeling rather wistful.
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case. Peremptory challenges are “ace in the hole cards” because they allow attor-
neys to exclude a prospective juror who could not be removed from the panel using
a challenge for cause. Traditionally, attorneys can exercise peremptory challenges
without giving any reason for wanting to remove a particular person. Historically,
the attorney’s reasoning was legally irrelevant; perhaps the attorney had a “gut
hunch” that the person would favor the opposing side, or the attorney wished to
select jurors in keeping with his or her personal stereotypes of the “ideal” juror.
However, in recent years the issue of the purposes for which peremptory chal-
lenges are employed, especially by the prosecution, has become very controversial.
Research suggested that prosecutors used peremptory challenges to systematically
strike prospective jurors who were African American, especially in death penalty
cases where the accused was African American. In Philadelphia, a prosecutor con-
ducting a videotaped training session urged new district attorneys to use peremptory
challenges to strike poor African Americans as jurors (Johnson, 1998).
Questions about the role of peremptory challenges in jury selection have
come into sharp focus recently, given the new emphasis on inclusiveness in jury
selection that took hold after Duncan v. Louisiana. Controversy focused on the
“race-based” use of peremptories, because such challenges directly conflict with
the goal of representativeness in jury selection.
A major change in the Supreme Court’s perspective on the use of peremptory
challenges became evident in 1986. In Batson v. Kentucky (1986), the Court
reversed its earlier position in Swain v. Alabama (1965), holding that using race to
strike a prospective juror violated the defendant’s equal protection rights. Thus,
peremptory challenges cannot be used to exclude potential jurors solely on the
basis of race. In the Court’s written opinion, the justices discussed the potential
harm to the ideal of representativeness posed by the use of peremptories to strike
people of a cognizable group (a group of people recognizable as having a high
likelihood of sharing common experiences and attitudes). In Batson, the Court
decreed that when it appears that the prosecution may be engaging in a “race-
based” use of peremptory challenges, the court can require the prosecutor to pro-
vide a “nondiscriminatory” explanation for the pattern. Critics charge, however,
that this has not ended the race-based use of peremptory challenges (Morehead,
1994; Swift, 1993). Following Batson, the Supreme Court decided a series of cases
representing a consistent perspective on the purposes for which peremptory chal-
lenges can be used. The Court forbade the use of race-based peremptories in civil
cases in 1991 (Edmonson v. Leesville Concrete Company) and ruled that the use of
race-based peremptories by defense counsel in criminal cases is unconstitutional in
1992 (Georgia v. McCollum). In 1994, the Court extended its reasoning on peremp-
tory challenges in a case arising out of a child custody dispute (J.E.B. v. Alabama
ex rel. T.B.), forbidding the use of peremptories to strike prospective jurors solely
on the basis of gender.
Although the U.S. Supreme Court has thus far not extended its ban on the use
of peremptory challenges solely on the basis of race or gender to other potential
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“cognizable groups,” it may be only a matter of time. In 2000, the California
Supreme Court ruled that sexual orientation is another indicator of a cognizable
group, and thus peremptory challenges cannot be used to remove prospective
jurors solely on the basis of their sexual orientation (Chiang, 2000). This ruling
applies only in California, of course.2
What is the future of peremptory challenges? This jury selection technique
may have a limited lifespan, because of the increasing realization that there is an
inherent conflict between the ideal of representation and the use of peremptory
challenges. Another factor in the potential future demise of peremptory challenges
is that it seems quite likely the U.S. Supreme Court may recognize additional cog-
nizable groups in the future. For example, religious beliefs or occupational status
could arguably represent group distinctions meriting designation as a cognizable
group. It might even be argued that students could be considered a cognizable
group. Would you agree?
We Have a Jury!
During the voir dire phase of jury selection, prospective jurors have been “weeded
out” for a variety of reasons. The attorneys for both sides have challenged some for
cause, and have used peremptory challenges to unseat others. A notable number of
citizens may have asked the judge to be excused from serving in this case, citing a
variety of reasons: health problems or a change of circumstance that the requester
was not aware of when summoned. Depending on the judge’s discretion, hopeful
citizens may or may not have their request granted. At the conclusion of this
process, the folks who survived this long winnowing process comprise the jury,
along with a couple of alternate jurors who can step in if a juror has to leave (com-
monly for health reasons, or possibly due to actual or alleged juror misconduct).
So is the jury drawn from a “representative” cross-section of the community?
Consider all of the mechanisms by which folks are “weeded out” of the jury selec-
tion process (see Figure 12.2). These are all threats to the representativeness of the
selection process, leading some jury scholars to decry the process as the “myth of
representativeness” (Abramson, 1994).
THE TRIAL BEGINS
“All rise!” the bailiff commands, and everyone in the courtroom stands. As the
defendant, the attorneys, the court staff, the jurors, and the courtroom spectators
watch, the judge enters the courtroom and sits, and thus the trial begins. “Court
is in session!” says the bailiff. Thus begins the next phase of the trial after jury
selection.
The judge has lists of the items that each side wishes to have admitted as evi-
dence in the case. Evidence includes “any type of proof that is legally presented at
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348 Your Day in Court: The Trial Begins
Voter
registration
list
Department
of Motor
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Other
source
lists
“Master Wheel” (list of county
residents). Names are randomly
selected to receive jury summons.
No response to summons
Ineligible (do you know what the
eligibility requirements for jurors
are?)
Exempt (Peace Officers, usually)
Excused/postponed
In the courtroom: Voir dire (jury questioning)
• Potential jurors may ask the judge if they
can be excused. The judge decides.
• Potential jurors may be challenged for
cause and dismissed.
• Potential jurors may be dismissed via
peremptory challenges.
At the courthouse:
Citizens who responded to their jury
summonses, and who are not
ineligible, excused, or exempt, form
the venire (jury pool).
The jury box. (Why are there 14 people?)
FIGURE 12.2 The jury selection process in criminal trials
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trial through witnesses, records, and/or exhibits” (Courtinfo, online). Some of
these items will meet the legal requirements for admissibility as evidence without
much difficulty. Other items may be far more problematic. Is the evidence relevant
and probative, that is, tending to prove or disprove the legal issues at hand?
Some of the material offered as evidence may be inadmissible because of
questions about the legality of methods used to obtain it. For example, should the
confession of a defendant who was interrogated by police without an attorney pres-
ent be admitted? The defense wants the confession thrown out on grounds that it
was not given voluntarily; the prosecution argues that the confession was given
freely by the defendant. The judge considers legal precedent on the admissibility of
confessions and information on the circumstances under which this confession was
obtained in deciding whether it is admissible or not.
What about information that is so relative that it could prejudice the jurors
against the defense? Assume, for example, that a judge must decide whether to
allow the prosecution to introduce evidence of the defendant’s prior arrest for a
crime similar to the one in the current trial. The prosecution cannot present this
information as proof that the defendant is a “bad person,” and therefore likely
guilty of the current charge. This is prohibited by the rules of evidence (Federal
Rule of Evidence 407). But the prosecutor states that he is asking that evidence of
the defendant’s prior arrest or conviction be admitted to help jurors assess the cred-
ibility of the defendant’s testimony (if he or she takes the witness stand) because he
wants the jurors to consider whether someone with an arrest or conviction is a
believable witness.
The defense has filed a motion opposing the introduction of evidence of the
prior arrest or conviction, arguing that it will unnecessarily prejudice the defen-
dant’s case. The defense attorney currently plans to call the defendant to the stand
to testify on his or her own behalf, but may change that plan depending upon how
the trial proceeds. The defense faces a dilemma: If the defendant testifies and the
prosecutor is allowed to tell the jury about his or her prior arrest, jurors may per-
ceive the defendant as having little credibility, or worse, as having a propensity for
criminal behavior (Grant, 1996). Yet, (if the defendant does not take the stand) and
testify about events during the night in question, the jurors may wonder about this
and might interpret the defendant’s silence as an indication of guilt, despite the
judge’s admonition to jurors not to make such an inference.
The judge scans the courtroom, looking at the faces of the participants and
spectators. After opening remarks to the audience, the judge turns to look at the
expectant faces in the jury box. From this point on, almost everything that is said
and done in the courtroom by the participants in the case is done with an eye to
how it will influence the jurors. How will the jurors perceive the evidence that is
presented? How will they be influenced by the witnesses whose testimony they
hear? Will the defendant’s demeanor and facial expression have a favorable or
unfavorable impact? Will the jurors’ impressions of the attorneys and the judge
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color their attitudes about the facts in the case? What impression will the victim—
or the family and friends of the victim—make on jurors as they sit in the spectator
section of the courtroom or testify on the witness stand?
OPENING STATEMENTS
The purpose of opening arguments is to provide a framework for jurors to consider
the evidence to come. The opening arguments are not part of the evidence, yet they
are considered critical factors (along with closing arguments) in the jury’s deci-
sion. The prosecution begins the presentation of the evidence at trial by outlining
the government’s “case in chief” (the government’s theory and evidence in the
case) for the court. The prosecution bears the burden of proving its case beyond a
reasonable doubt. The defense then presents its opening arguments; it may be more
difficult for the defense to construct a persuasive opening argument because much
of the defense case will consist of attacking the credibility of the prosecution’s ver-
sion of events rather than providing a distinct alternative explanation for events
(Faculty, 2000).
As the excerpt from the prosecution’s opening statements in the McVeigh case
illustrates, opening statements can be emotionally compelling presentations, con-
sistent with the dramatic nature of a criminal trial (see Box 12.7). As the famous
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BOX 12.7
Excerpts from the Prosecution’s Opening Statements
in the Oklahoma City Bombing Trial
Ladies and gentlemen of the jury, April 19th, 1995, was a beautiful day in Oklahoma City—at
least it started out as a beautiful day. The sun was shining. Flowers were blooming. It was spring-
time in Oklahoma City. Sometime after 6 o’clock that morning, Tevin Garrett’s mother woke
him up to get him ready for the day. He was only 16 months old . . . and as some of you know
that have experience with toddlers, he had a keen eye for mischief. . . .
That morning, Mrs. Garrett got Tevin and her daughter ready for school and they left the
house at about 7:15 to go downtown to Oklahoma City. She had to be at work at 8 o’clock.
Tevin’s sister went to kindergarten, and they dropped the little girl off at kindergarten first; and
Helena Garrett and Tevin proceeded to downtown Oklahoma City. . . . Tevin attended the day-
care center on the second floor of the federal building.
When she went in, she saw that Chase and Colton Smith were already there, two years old
and three years old. Dominique London was there already. He was just shy of his third birthday.
So was Zack Chavez. He had already turned three. When she turned to leave to go to her work,
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Opening Statements 351
Tevin, as so often, often happens with small children, cried and clung to her; and then, as you
see with children so frequently, they try to help each other . . . one of the little Coverdale boys—
there were two of them, Elijah and Aaron. The youngest one was two and a half. Elijah came up
to Tevin and patted him on the back and comforted him as his mother left.
As Helena Garrett left the Murrah Federal Building to go to work across the street, she
could look back up at the building; and there was a wall of plate glass windows on the second
floor. You can look through those windows and see into the day-care center; and the children
would run up to those windows and press their hands and faces to those windows to say good-
bye to their parents. And standing on the sidewalk, it was almost as though you can reach up and
touch the children there on the second floor. But none of the parents of any of the children that I
just mentioned ever touched those children again while they were still alive.
At nine o’clock that morning, two things happened almost simultaneously. In the Water
Resources Building—that’s another building to the west of the Murrah Building—an ordinary
legal proceeding began in one of the hearing rooms; and at the same time, in front of the Murrah
Building, a large Ryder truck pulled up into a vacant parking space in front of the building and
parked right beneath those plate glass windows from the day-care center.
What these two separate but almost simultaneous events have in common is that they both
involved grievances of some sort. The legal proceeding had to do with water rights. . . . It was a
tape-recorded proceeding, and you will hear the tape recording of that proceeding. It was an
ordinary, everyday-across-America, typical legal proceeding in which one party has a grievance
and brings it into court or into a hearing to resolve it, to resolve it not by violence and terror, but
to resolve it in the same way we are resolving matters here, by constitutional due process.
And across the street, the Ryder truck was there also to resolve a grievance; but the truck
wasn’t there to resolve the grievance by means of due process or by any other democratic
means. The truck was there to impose the will of Timothy McVeigh on the rest of America and
to do so by premeditated violence and terror, by murdering innocent men, women and children,
in hopes of seeing blood flow in the streets of America.
At 9:02 that morning . . . a catastrophic explosion ripped the air in downtown Oklahoma
City. It instantaneously demolished the entire front of the Murrah Building, brought down tons
and tons of concrete and metal, dismembered people inside, and it destroyed, forever, scores
and scores and scores of lives—lives of innocent Americans: clerks, secretaries, law enforce-
ment officers, credit union employees, citizens applying for Social Security, and little kids.
All the children I mentioned earlier, all of them died, and more; dozens and dozens of
other men, women, children, cousins, loved ones, grandparents, grandchildren, ordinary Amer-
icans going about their business. And the only reason they died, the only reason that they are no
longer with us, no longer with their loved ones, is that they were in a building owned by a gov-
ernment that Timothy McVeigh so hated that with premeditated intent and a well-designed plan
that he had developed over months and months before the bombing, he chose to take their inno-
cent lives to serve his twisted purpose.
In plain, simple language, it was an act of terror, violence, intended to serve selfish politi-
cal purpose.
The man who committed this act is sitting in this courtroom behind me, and he’s the one
that committed those murders.
Source: Associated Press, 1997. Reprinted with permission.
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jurist Judge Learned Hand once wrote: “It is impossible to expect that a criminal
trial shall be conducted without some show of feeling; the stakes are high, and the
participants are inevitably charged with emotion. Courts make no such demand;
they recognize that a jury inevitably catches this mood . . .” (United States v. Wexler,
1935). For this and other reasons, opening arguments can have a powerful influence
on jurors, and in some cases jurors may decide their opinion of the case simply on
the basis of hearing the “opener,” before the evidence is presented (Perrin, 1999).
For both sides, the opening statements provide the opportunity to develop the
framework of the case, focus on relevant themes, and present a theory of what
occurred. These three elements—frame, themes, and theory—define the contours of
the case (see Box 12.8 for an example of this). As one article on trial advocacy
advises:
Opening statement is especially demanding because it requires counsel to present facts in a
compelling manner. Counsel must emphasize from the beginning that they are “telling a
story” to the panel. “Telling a story” is the best way to structure an opening statement, that
is, to present the opening statement with a compelling recitation of the facts, using inflection
and language to highlight some facts and minimize others, and to create empathy with the
panel for counsel’s theory of the case. Counsel can also use devices to add emphasis and to
suggest disbelief. Such devices include repetition, vivid imagery, and oratorical techniques
such as dramatic pauses and pacing. (Faculty, 2000, p. 35)
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BOX 12.8
Key Elements of the Case
Steven Lubet describes why it is critically important to set up the framework of a case in order
to set the context within which the triers of fact will evaluate all subsequent pieces of evidence:
That act of imagination or vision constitutes a story frame, the context in which the factfinder
determines what must have happened in the incident described by the evidence. To use a
contemporary example, recall that the prosecution in the O.J. Simpson case labored long and
hard to create what might be called a “domestic violence” frame. At the very outset of the trial,
prosecutors introduced evidence of Mr. Simpson’s ill treatment of his wife, his past threats,
and her fear of him. The purpose of this evidence was to support the conclusion that, given
his jealousy, anger, and violent nature, he must have been the murderer. In contrast, the defense
developed a counter-story, the “police prejudice” frame, intended to advance the theory
that the officers must have contrived or mishandled the DNA and other evidence against Mr.
Simpson.
Neither side had the benefit of direct evidence, which increased the importance of the
competing frames. . . . Instead, the jurors were asked to reach a conclusion based upon an accu-
mulation of circumstances, in light of their own judgment and past experiences. (Lubet, 2001)
Source: Reprinted with permission of the University of Colorado Law Review.
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There are limits to what attorneys can say as part of opening (and closing)
statements, however. According to the rules of trial procedure and professional eth-
ical guidelines, for example, attorneys should not make factual claims that will not
be supported by the evidence, make prejudicial remarks about any of the parties in
the case, attack opposition witnesses or counsel, or refer to jurors by their names
(Sinclair, 1990). While examples of violations of such rules by both defense coun-
sel and prosecutors are obviously troubling, instances of inappropriate claims by
prosecutors during opening statements raise special concerns because of the fact
that prosecutors may have greater credibility in the eyes of jurors.
THE EVIDENCE IS PRESENTED
After opening statements by the prosecution and defense, the trial then proceeds
with the prosecution’s presentation of evidence. There are two types of evidence:
1. Direct evidence usually is that which speaks for itself: eyewitness
accounts, a confession, or a weapon.
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The Evidence Is Presented 353
© 1998. NUCLEUS INTERACTIVE, INC. ALL RIGHTS RESERVED.
GUNSHOT WOUND TO THE HEAD
LEVEL OF
SECTION
PATH OF
BULLET
THROUGH
HEAD
ENTRANCE
WOUND
EXIT
WOUND
MARKEDLY COMMINUTED
SKULL FRACTURES
LEFT
SUBDURAL
HEMATOMA
LEFT TO RIGHT MIDLINE SHIFT OF
THE BRAIN WITH COMPRESSION
OF THE LEFT VENTRICLE
MULTIPLE
METALLIC
BULLET
FRAGMENTS
CONSIDERABLE
SOFT TISSUE
SWELLING
Many prosecutors and defense attorneys present evidence to a jury or judge through the use of court-
room exhibits. This exhibit illustrates the injuries received by a shooting victim in a comprehensive
and informative graphic, to help a juror or judge see the negative effects of the crime. By looking at
this graphic, created by Medical Legal Art, one can easily imagine the harm to the victim. Technology
has greatly changed the nature of courtroom exhibits by providing graphics such as computer-generated
animations to demonstrate shootings, car accidents, and other incidents. SOURCE: Courtesy of Med-
ical Legal Art, Atlanta, Georgia.
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2. Circumstantial evidence usually is that which suggests a fact by implica-
tion or inference: the appearance of the scene of a crime, testimony that
suggests a connection or link with a crime, physical evidence that suggests
criminal activity. (American Bar Association, 2001)
After the prosecution has presented the government’s case, the defense then
presents its case, and the prosecution has a brief opportunity for rebuttal. As you
will recall from Step 8, there are a variety of key players at trial, and this is the
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354 Your Day in Court: The Trial Begins
BOX 12.9
The Confrontation Clause: Confronting Controversies
The Sixth Amendment provides a person accused of a crime many key due process rights, some
of which we discussed in Step 4. A key provision of the Sixth Amendment is the confrontation
clause, which specifies a defendant’s right “to be confronted with the witnesses against him.”
This provision was intended to ensure that the trial process was conducted in an open and fair
manner so that the accused would be able to respond to the charges alleged. For this reason, the
defendant has the right to be present at his or her trial during all phases of the proceeding, and to
confront the witnesses against him or her. In most trials, no special issues relating to the con-
frontation clause arise, but in some trials very difficult legal and ethical issues do occur in con-
nection with these rights.
Suppose, for example, that a defendant is repeatedly disruptive at trial. Perhaps the defen-
dant tries to attack others, or constantly interrupts the judge or other parties in the case. Perhaps
the court’s admonitions to the defendant and defense counsel are insufficient to stop the disrup-
tions, which are so problematic that the trial cannot proceed unless the defendant behaves. Yet,
the defendant continually defies the judge. The constitutional question is whether or not the trial
can continue if the defendant has been removed from the courtroom in order to prevent disrup-
tion of the legitimate legal proceeding taking place. Can you think of some of the arguments for
and against allowing the trial to proceed in the absence of a disruptive defendant?
Cases involving child witnesses have also posed constitutional challenges to the con-
frontation clause. In cases involving child witnesses who testify in court about their experiences
as victims of sexual abuse, courts have grappled with the question of whether it is constitution-
ally permissible for child witnesses to avoid direct visual contact with the defendant through
testifying from behind a screen or via closed-circuit television. This difficult issue implicates
the rights of the defendant, concerns for victims, and the interests of the government in ensuring
that key prosecution witnesses are able to testify. Are such “screening” mechanisms acceptable?
If so, why? If not, why not? What are the implications of allowing such screening mechanisms?
What might the jury miss if such mechanisms are allowed?
Should witnesses who fear retribution be allowed to testify anonymously? Prosecutors
argued (in California v. Alvarado, 2001) that the witnesses would face danger from violent gang
members if they testified in a murder trial while using their real names. Prosecutors argued that
the witnesses should be allowed to testify anonymously despite the fact that the weight of prece-
dent on the issue did not favor their position.
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point at which many take the stage, so to speak. All the major parties to the case
should be present, although in a small percentage of trials the defendant may not be
present (see Box 12.9 on the confrontation clause). During the course of the trial, a
wide variety of witnesses may be called to testify, including the victim, the defen-
dant, police officers, government investigators (such as Drug Enforcement Admin-
istration agents), expert witnesses, character witnesses, and other witnesses
attesting to key facts in the case (for example, that the defendant was at work with
them at the time of the crime). A witness is a person who can give a firsthand
account of something they saw, heard, or experienced. Each time a person takes the
witness stand to testify, the bailiff swears the person in by administering the oath to
be truthful. The witness then testifies on direct examination; that is, in response to
questions from the attorney representing the party that called the witness. A pattern
quickly becomes apparent: After each side presents a witness, opposing counsel
then steps in and questions the witness, asking probing questions designed to chal-
lenge the witness’ testimony. This is the process of cross-examination, a basic and
powerful tool in the adversarial process because it can help reveal inconsistencies,
contradictions, and gaps in testimony. During cross-examination, attorneys may
ask leading questions, but the scope of their questioning should be restricted to the
matters the witness testified to on direct examination. Sometimes a witness’ testi-
mony appears to surprise the attorney who called the witness, and the value of the
old legal saying that one should “never ask a question unless you know the answer”
becomes evident (see Box 12.10 for a humorous example).
Cross-examination has been called “the heart and soul of a criminal trial”
(Swerling, 1999, p. 753). The power of cross-examination lies in its use as a tool
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BOX 12.10
Never Ask a Question Unless You Know the Answer
An attorney questioning a doctor on the witness stand asked the following questions (Sevilla
and Lorenz, 1993, online):
Question: Doctor, before you performed the autopsy, did you check for a pulse?
Answer: No.
Q: Did you check for blood pressure?
A: No.
Q: Did you check for breathing?
A: No.
Q: So, then it is possible that the patient was alive when you began the autopsy?
A: No.
Q: How can you be so sure, Doctor?
A: Because his brain was sitting on my desk in a jar.
Q: But could the patient have still been alive nevertheless?
A: Yes, it is possible that he could have been alive and practicing law somewhere.
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for developing evidence that supports the cross-examining attorney’s case and illu-
minates contradictions in the opposition’s case:
The possible purposes of cross-examination include discrediting the witness, impeaching the
witness, undermining the damaging testimony of a witness or another adverse witness by
cross-reference, eliciting favorable testimony to your position, drawing or creating favorable
inferences with other testimony, corroborating favorable testimony for your position,
damaging your adversary’s case, advancing your case, injecting or enhancing your theme,
and tying down an important issue or unanswered question (Swerling, 1999, p. 764).
For example, cross-examination allows the jury to assess the credibility of a wit-
ness when it is used to impeach the witness. As one court Web site states in its
information for prospective jurors:
As you listen to the testimony, there are a few questions you might keep in mind: Does this
witness have an interest in how the case comes out? Does he or she “forget” when its
convenient to do so, and only remember what is favorable? Are the statements of the witness
reasonable—or improbable? Could the witness simply be mistaken about what he or she saw,
heard, smelled, or felt?
Remember that witnesses often remember different details, especially when an event
happened quickly, and involved emotions. Cross-examination of witnesses will also help you
in considering evidence. Cross-examination often points up weaknesses, uncertainties, and
improbabilities in testimony that might have sounded convincing at first. You should keep an
open mind to the end of the trial, when you have heard all the evidence (Santa Clara County,
2001).
Cross-examination is sometimes referred to as a “double-edged sword.” On
one hand, an effective cross-examination can be the key to winning a case, whereas a
less skillful cross-exam carries the potential to weaken a case if it reveals information
that wasn’t anticipated by the cross-examining attorney. On the other hand, cross-
examination is not without potential costs of several types. For example, although the
legal rationale for cross-examination of a defense character witness is to help the jury
assess the credibility of the character witness’ testimony, it can weaken the defen-
dant’s case by painting an unflattering portrait of the defendant’s criminal history.
“So what?” you may well ask. The problem is that it is legally impermissible for
jurors to draw an inference that the defendant has a propensity for criminal behavior
on the basis of information about prior criminal history of the defendant. Yet research
suggests that jurors are quite likely to make such an inference, and that it may signif-
icantly influence their verdicts (Grant, 1996). Thus, cross-examination in such
instances may carry an unintended “legal cost” to the defendant.
Cross-examination of victims in sex crimes cases provides a different ex-
ample of the potential costs of the “double-edged sword.” Research and observation
of cross-examination of victims in rape cases illustrates that searching questions
posed by defense counsel can contribute to rape victims’ feelings that they have
been “revictimized” by their courtroom experiences.
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When counsel for one side believes that the other side is making statements
that are irrelevant, prejudicial, or misleading, the attorney will interject with an
objection. If the judge sustains the objection, the offending attorney will be
instructed in accordance with the judge’s ruling, such as requiring the attorney to
rephrase a question or discontinue an offensive behavior, such as harassing a wit-
ness. If the judge decides the objection lacks merit, the objection will be overruled,
sometimes after the action in question has been explained by the errant attorney. At
various times, the attorneys and the judge will call a sidebar if there is a legal ques-
tion that needs to be briefly discussed at the judge’s bench, out of earshot of the
jury. If the issue requires more extensive discussion, the judge may call a recess
and hear from both attorneys in chambers.
During the presentation of evidence, counsel for both sides must focus on
how the proceedings appear to jurors (see Box 12.11). An interesting example of
jurors’ perspectives on the legal process illustrates this point: Louisiana Judge W.
Ross Foote interviewed more than 400 jurors to ask them their opinions on the
judicial process. Following are the jurors’ “top ten pieces of advice” to lawyers
(Foote, 1995, quoted in Anderson, 1999, p. 621):
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BOX 12.11
Some Tips, Tricks, and Techniques of Trial Presentation
During a trial, attorneys must consider the most persuasive way to present the evidence, the wit-
nesses, and the arguments they present. The literature on trial tactics is replete with examples of
appeals to jurors’ emotions. The attorney might appeal to jurors’ sense of right and wrong, or
ask them to think about how their verdict will affect their community. Prosecutors and defense
attorneys alike may remind jurors of the victim’s character; how the death of such a person of
sterling qualities represents a loss to society; or how the victim’s abusive, violent characteristics
contributed to his or her own demise. Attorneys may ask jurors to put themselves in the shoes of
the victim or the defendant, and to imagine how they would respond in similar circumstances.
If the families and friends of the victim and the defendant can appear in court to show sup-
port, so much the better. The silent message that this is a person whom others judge worth sup-
porting, or a person who is much loved and much missed, is worth more than a thousand words.
During cross-examination, one of the attorneys may “accidentally” mention information
that is not admissible, such as the fact that the defendant or the witness has a prior criminal
record. Despite the objection from opposing counsel and an admonition from the judge to jurors
to ignore the forbidden fact, the cat is already out of the bag.
Another technique used to reduce the impact of damaging information about the credibil-
ity of your witness is to beat the opposition to the scoop by acknowledging the issue at the out-
set of the witness’ testimony. This tactic of “stealing thunder” deprives opposing counsel of the
opportunity to claim that your side tried to conceal the witness’ credibility flaws from the jury.
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1. Be brief, succinct and accurate. Get to the point.
2. Don’t repeat evidence, questions and other points so often.
3. Don’t confuse the jury. Establish as many facts as possible, leaving no
questions or doubts. Give more background on some points. Cover all
bases of a case sufficiently.
4. Be more organized and prepared and familiar with the information
required. Make sure your client also is prepared with factual information
at hand.
5. Keep in mind a lay person’s lack of knowledge of legal and . . . medical
terminology. Speak in simple terms and have witnesses do so, also.
6. Do not underestimate the intelligence and ability of the jury.
7. Be factual, fair and courteous. Don’t make the other attorney’s questions
look stupid and ridiculous. Don’t show hostile attitudes, at least not to
the jury.
8. Don’t object so often.
9. Try to settle out of court.
10. Use fewer theatrics. Don’t be a big fake. Be nice but don’t take it to
extremes. (Louisiana Bar Association; reprinted with permission)
CLOSING STATEMENTS
After the presentation of evidence by both sides is finished, including direct exam-
ination, cross-examination (and, sometimes, more questions during redirect and
re-cross-examination), the trial concludes with the prosecution and defense closing
statements. These carefully crafted presentations to the jury are designed to per-
suade the triers of fact to draw particular inferences from the facts that support a
specific conclusion favoring the speaker’s side. As with presentation of the evi-
dence, the prosecution usually presents its closing argument first, followed by the
defense. After the defense’s closing argument, the prosecution is allowed a brief
period of rebuttal and the defense can make a surrebuttal.
There is much debate and some study on the question of the relative advan-
tage to the government of being allowed the first chance to frame the issues during
closing arguments, in contrast to the defense’s position of following the prosecu-
tion and yet being subject to the prosecution’s opportunity for rebuttal (Mitchell,
2000). During the closing, counsel will summarize the case, in the process remind-
ing the jury of the strength of their arguments and the weaknesses in the opponent’s
case. Closing arguments cannot be used to present new evidence, but they provide
an opportunity for counsel to present the jury with a new “twist” on the conclu-
sions they are asked to draw from the evidence presented. In this context, the effec-
tive trial counsel, whether defense or prosecution, may want to consider the Story
Model’s paradigm (Pennington and Hastie, 1993) of juror decision-making while
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constructing a persuasive narrative during closing statements (Meyer, 1999). The
effectiveness of closing arguments thus depends upon the rhetorical skills of the
attorneys in presenting their arguments persuasively. Therefore, closing arguments
are an opportunity for counsel to demonstrate their efforts at zealous advocacy in
the adversarial arena. Yet for this very reason, critics charge that closing arguments
often illustrate “adversarial excesses” when attorneys overstep the boundaries of
appropriate advocacy (Nidiry, 1996). For just as we saw in the section on opening
statements, attorneys are prohibited from doing certain things—such as referring
to facts not admitted as evidence, introducing new evidence, or invoking racial,
ethnic, or gender stereotypes about the defendant, the victim, or witnesses during
“closers”—but in practice, attorneys may flout such rules with relative impunity
(Nidiry, 1996). For example, defense attorneys in most jurisdictions are not permit-
ted to ask jurors to nullify the law, but in other jurisdictions this is permissible, and
in practice this may occur in any jurisdiction.
Given the prosecutor’s role as a “minister of justice” and the possibility that
prosecutors’ assertions may have greater credibility than the claims of defense
counsel in the eyes of some jurors, the problem of prosecutorial misconduct during
closing statements raises special concern. Prosecutors who use inflammatory
language—for example, calling defense witnesses “liars,” making prejudicial refer-
ences to the defendant’s ethnic background or sexual orientation, or arguing that the
jury must help the government “win the war on drugs” by convicting the defendant—
may be shifting the emphasis of the argument from evidence to emotion. Such a
shift would signal a potential “legal impropriety” on the part of counsel (Nidiry,
1996). The issue of what kinds of statements may be allowed as part of closing
arguments has been particularly controversial in death penalty cases in which pros-
ecutors have made religious arguments in favor of the death penalty. For example,
one prosecutor’s closing arguments to the jury during the penalty phase of a capital
trial included the following statements:
You are not playing God. You are doing what God says. This might be the only opportunity to
wake [the defendant] up. God will destroy the body to save the soul. Make him get himself
right. . . . Let him have the opportunity to get his soul right. (People v. Sandoval, 1992, p. 193)
Although courts have consistently held that such arguments are improper for a
variety of reasons, the courts have rarely offered any remedy to defendants (Duffy,
1997). Actual and proposed remedies for attorney misconduct during closing have
proven insufficient to address the problem, and in some cases appear merely to per-
petuate the problem. For example, in some cases the improper assertions of defense
counsel during closing arguments have been “remedied” by the court allowing the
prosecution to make similar arguments in rebuttal (Nidiry, 1996).
However, while defense counsel misconduct during closing is much less
often subject to appellate review (given that the government cannot appeal acquit-
tals),3 prosecutorial misconduct during closing argument can be the basis for an
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appellate court overturning a conviction. For example, in People v. Hill (1998), the
defendant’s convictions for murder and attempted murder in a death penalty case
were overturned after prosecutorial misconduct was held by the appellate court to
represent a denial of the defendant’s right to a fair trial. In this unusual case, the
prosecutor had previously been rebuked (although not formally disciplined) by the
same appellate court for using a variety of inappropriate tactics during closing
arguments in other cases, including one in which the defendant’s conviction for
child molestation was overturned as a result of an appellate finding that the prose-
cutor’s misconduct included misstating the law and making “unjustified infer-
ences” (Spiegelman, 1999). In the Hill case, the court found that the prosecutor had
misstated the evidence, referred to inadmissible evidence during closing, mischar-
acterized the testimony of an eyewitness, misstated the law, intimidated defense
witnesses, and displayed contempt for opposing counsel both verbally and nonver-
bally (Spiegelman, 1999) (see Box 12.12).
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BOX 12.12
Prosecutorial Misconduct in People v. Hill
The Hill prosecutor’s misconduct is illustrated by a couple of examples discussed in Spiegel-
man (1999). In one instance, the prosecutor misstated the evidence when she directed the victim
of attempted murder to show the jury a ten-inch scar on his chest, which the prosecutor later
referred to in her closing argument to the court:
You saw the scar. Take a look at it, and you will remember how far across the chest
it went. If you stick it in him two times and rip his chest open, you are planning to
kill him. (People v. Hill, 1998, p. 686)
The defense counsel objected, providing hospital records showing that the scar that the
jury had seen was not the result of the attack, but instead was a scar resulting from surgery the
defendant had undergone earlier. Nonetheless, the prosecutor refused to acknowledge this
(Spiegelman, 1999).
The prosecutor also smeared the defendant’s character by claiming that:
Everything [the defendant] ever did one way or another, he got away with. He has
killed. He has stabbed. He has robbed. He has gone to prison for it. He has not been
rehabilitated under any guise or thought. (People v. Hill, 1998, p. 693).
However, this was not in fact the case, because the defendant did not have any prior convictions
for homicide, attacks involving stabbing, or robbery. The prosecutor was reported to the state
Bar Association for disciplinary proceedings. (Spiegelman, 1999, reprinted with permission)
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JURY INSTRUCTIONS
“Ladies and Gentlemen of the jury. . . .” It’s time for the judge to issue instructions to
jurors about their duties before the jury retires to the deliberation room. The nature
and length of jury instructions varies with the type of case; in some cases, they may
take several hours (or even longer). The judge’s charge to the jury in a criminal case
will outline the elements of the crime that must be proven, and remind jurors that the
prosecution carries the burden of proving the defendant’s guilt beyond a reasonable
doubt. The judge will tell the jurors what their verdict choices are: For example, in a
particular case, jurors may have a choice between verdicts of first-degree murder,
second-degree murder, manslaughter, or acquittal. The instructions will remind
jurors that they must base their verdict on evidence presented in court, and apply the
law as instructed by the judge. In addition to the standard jury instructions given,
jurors may also be given additional instructions on specific issues that the defense or
the prosecution has requested. For example, jurors may be reminded that information
they learned about the defendant’s prior convictions should only be used to assess his
or her credibility, not to infer a general propensity for criminal behavior.
It seems obvious that it is important for jurors to be able to understand the
instructions the judge reads to them concerning the case. After all, how can the
jurors apply the law to the facts of the case if they don’t understand what they are
supposed to be doing? Yet, research demonstrates that jurors may not comprehend
jury instructions accurately, and often fail to follow them (Severence and Loftus,
1982; Tanford, 1990; Diamond, 1994). Some jurors may believe that the defendant
must prove innocence, despite direct instructions to the contrary. In addition, jurors
sometimes have trouble with instructions about the burden of proof. The fact that
jurors are instructed on the law only after hearing the case, rather than being given
such instructions at the outset, may lessen the impact of the instructions. Some jury
researchers have suggested that instructions should be given at both the beginning
and end of a case in order to maximize their usefulness to jurors.
The consequences of a failure of understanding are not trivial matters.
Researchers interviewing jurors who had served in death penalty cases discovered
that some of the former jurors were confused about the difference between “aggra-
vating” and “mitigating” factors (Eisenberg and Wells, 1993; Garvey, 1998). Other
researchers have found similar results (Luginbuhl, 1992; Blankenship et al., 1997).
The distinction is a critical one, for jurors are instructed in capital cases to decide
whether the defendant receives life or death on the basis of such factors. Aggrava-
tors include factors that weigh in favor of a death sentence, such as whether the
victim was tortured before death or the victim was a child. Mitigators include fac-
tors that weigh in favor of giving a life sentence, such as the defendant’s past his-
tory of abuse or mental incapacity.
Despite the significance of jurors’ lack of comprehension, appellate courts
have not been receptive to appeals based on this argument. Although an appeal
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based on the fact that the jury was not given the appropriate legal instructions may
well result in a conviction being overturned and a new trial ordered, it is a different
matter if the jury simply did not understand an instruction that was properly given.
In one case, the appellate court noted that: “It has never been held error in Califor-
nia to instruct in terms of [a jury instruction] due to lack of intelligibility” (John B.
Gunn Law Corp. v. Maynard, 1987). See what you think of the jury instructions in
Box 12.13. How understandable are they? Do you think these instructions would
raise any questions in the minds of jurors?
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362 Your Day in Court: The Trial Begins
BOX 12.13
Deciphering Jury Instructions:
Would It Help to Be Psychic?
In the state of New York, if you are a juror in the trial of a defendant accused of misdemeanor
fortune-telling, these are some of the instructions the judge will read to you:
The count is Fortune Telling.
Under our law, a person is guilty of Fortune Telling when, for a fee or compensation
which he or she directly or indirectly solicits or receives, that person claims or pretends to tell
fortunes [or holds himself or herself out as being able, by claimed or pretended use of occult
powers, to answer questions (or give advice on personal matters) (or exorcise, influence or
affect evil spirits or curses)].
[This charge does not apply to a person who engages in such conduct as part of a show or
exhibition solely for the purpose of entertainment or amusement.] In order for you to find the
defendant guilty of this crime, the People are required to prove, from all the evidence in the
case, beyond a reasonable doubt, both [each] of the following two [three] elements:
1. That on or about (date), in the county of (county), the defendant, (defendant’s name),
claimed or pretended to tell fortunes [or held himself/herself out as being able, by
claimed or pretended use of occult powers, to answer questions (or give advice on per-
sonal matters) (or exorcise, influence or affect evil spirits or curses)]; and
2. That the defendant directly or indirectly solicited or received a fee or compensation for
such conduct; and
3. [That the defendant did not engage in such conduct as part of a show or exhibition
solely for the purpose of entertainment or amusement].
Therefore, if you find that the People have proven beyond a reasonable doubt both [each]
of those elements, you must find the defendant guilty of Fortune Telling as charged in the count.
On the other hand, if you find that the People have not proven beyond a reasonable doubt
either one or both [any one or more] of those elements, you must find the defendant not guilty of
Fortune Telling as charged in the count.
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JURY DECISION-MAKING: LEGAL AND
EXTRA-LEGAL INFLUENCES
How do jurors decide on a verdict? Although the verdict should reflect only the evi-
dence in the case, research has revealed that many factors other than the evidence
can significantly influence jurors’ thoughts and emotions, and thus potentially their
verdicts. Jurors’ attitudes and beliefs about human nature, the law, and legal
processes are potentially significant (but not necessarily inevitable) influences on
their verdicts (Levine, 1992). Jurors’ perceptions of the character, motives, and
behavior of key players in the legal drama—the defendant, the victim, the judge,
the attorneys—represent one category of extra-legal factors that can significantly
influence the verdict. Jurors’ beliefs about the defendant’s future dangerousness,
the proportionality of the defendant’s potential sentence to the crime, and other
legally irrelevant factors can also influence the verdict (Levine, 1992). In one sur-
vey of potential jurors, “A significant minority of respondents said that they could
not be impartial if a party were gay or lesbian (31 percent); Hispanic (25 percent);
black (24 percent); Asian (24 percent); or Caucasian (23 percent)” (Van Voris,
2000, p. 1). Although this finding does not guarantee that such biases would signif-
icantly influence such jurors’ verdicts, it seems quite plausible that it would. A
recent examination of white jurors’ bias against black defendants, for example,
found evidence of racial bias, and the authors conclude that the evidence suggested
that racial bias was particularly apparent in cases where race was not an explicit
issue in the trial (Sommers and Ellsworth, 2001).
At a broader level, the political climate and the tide of public opinion on
crime are also significant influences in some cases (Levine, 1992). Because of the
fact that by law, jury verdicts should reflect only the evidence in the case, factors
such as these are referred to as “extra-legal” or sometimes “extra-evidential” influ-
ences on the jury in order to emphasize that they are legally irrelevant. Let’s look
more closely at an example of this.
What if public opinion about a particular case is so volatile that it threatens
the defendant’s right to a fair trial? Can justice truly be served when courtroom
proceedings occur in an atmosphere of palpable tension? Can jurors freely deliber-
ate without consideration of how their decision will be received? If jurors are to
serve as “the conscience of the community,” what happens when the community
wants blood, not justice?
In 1913, during the trial of Leo Frank, a northerner of Jewish heritage
accused of murdering a young girl, newspaper accounts described the uproar that
existed in the southern community of Atlanta, Georgia, over the case. At the con-
clusion of Frank’s trial in an emotionally charged courtroom, the jurors found
Frank guilty and sentenced him to death. The defense appealed the sentence, but it
was affirmed by a majority of judges of the Georgia Supreme Court. However, two
judges dissented: Judge Oliver Wendell Holmes (who later became a member of
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the U.S. Supreme Court) and judge Charles Evans Hughes. Judge Holmes’
description of Leo Frank’s trial make the reasons for the dissent clear:
The trial began on July 28, 1913, at Atlanta, and was carried on in a court packed with
spectators and surrounded by a crowd outside, all strongly hostile to [Frank]. On Saturday,
August 23, this hostility was sufficient to lead the judge to confer in the presence of the jury
with the Chief of Police in Atlanta and the Colonel of the Fifth Georgia Regiment stationed
in that city, both of whom were known to the jury. . . . The judge before beginning his charge
had a private conversation with [Frank’s] counsel in which he expressed the opinion that
there would be ‘probable danger of violence’ if there should be an acquittal or disagreement
[i.e., a hung jury], and that it would be safer for not only [Frank] but his counsel to be absent
from Court when the verdict was brought in.
At the judge’s request they agreed that [Frank] and they should be absent, and they kept
their word. When the verdict was rendered, and before more than one of the jurymen had
been polled there was such a roar of applause that the polling could not go on till order was
restored. The noise outside was such that it was difficult for the judge to hear the answers of
the jurors although he was only ten feet from them. . . .
Mob law does not become due process of law by securing the assent of a terrorized jury.
We are not speaking of mere disorder, or mere irregularities in procedure, but of a case where
the processes of justice are actually subverted. . . . Any judge who has sat with juries knows
that . . . they are extremely likely to be impregnated by the environing atmosphere. (Zobel,
1995. Reprinted with permission of American Heritage, Inc.)
Despite the Georgia appellate court’s affirmation of Leo Frank’s death sentence,
the governor exercised his legal option to commute the sentence to life imprison-
ment. But a few weeks later, an angry mob stormed the local jail where Leo Frank
was being held, kidnapping and then lynching him (Zobel, 1995).
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364 Your Day in Court: The Trial Begins
BOX 12.14
Legal Assumptions about Jury Decision-Making
What are the law’s assumptions about jury decision-making, and are these assumptions realistic
in light of research on how jurors and juries actually function? Imagine that you are a juror in a
felony trial involving a defendant charged with a serious crime. In the courtroom, you watch
and listen as lawyers present the opening arguments, refer to pieces of important evidence, and
cross-examine witnesses. You may listen to testimony from the victim, expert witnesses for one
or both sides, and possibly the defendant as well. Throughout all this, you are forbidden to take
any notes. Fortunately, the court reporter records the proceedings while making a transcript of
the trial. While the trial is proceeding, you are not allowed to talk to anyone—including your
fellow jurors—about any aspect of the case. You are not supposed to come to a conclusion about
the defendant’s guilt or innocence until you gather with the other jurors to deliberate, yet your
mind keeps coming back to the guilt question every night as you go to sleep. You know that you
should not let sympathy or prejudice influence your assessment of the evidence; but you some-
times find it hard to ignore your feelings as you think about the case.
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Jury Decision-Making: Legal and Extra-Legal Influences 365
What do you think is the purpose of these restrictions on your behavior as a juror?
Wrightsman, Nietzel, and Fortune (1994) assert that the law expects jurors to act in a certain
way, and that these expectations are embodied in such regulations and restrictions on juror con-
duct. Wrightsman and his colleagues identify five assumptions and assess their viability in light
of research on human behavior. They discuss how such research casts serious doubt on the accu-
racy of these assumptions.
1. Jurors are accurate and complete information processors. This assumption is reflected in the
fact that typically jurors are not allowed to take any notes on the trial. Instead, they are
expected to rely on their collective memories. Imagine if you were required to remember all
the things you’ve learned in your courses without the benefit of taking any notes or audio-
tapes. The judge has discretion to allow jurors to take notes, and an increasing number of
courts are allowing this.
Research on human cognitive biases, memory, and decision-making processes suggests
this assumption is questionable at best. Research on judgmental heuristics (decision-making)
demonstrates that human decision-making is typically distorted by cognitive biases (Nisbett
and Ross, 1980). Jurors’ accuracy as information processors is subject to question according
to research showing that jurors give too much weight to certain types of evidence (such as
eyewitnesses) but give too little weight to statistical and probabilistic evidence. In addition,
jurors often have difficulty understanding and/or adhering to jury instructions.
2. Jurors can suspend judgment until they hear all the evidence. This assumption is clearly
reflected in the court’s charge to jurors to avoid coming to a conclusion on the defendant’s
culpability until jury deliberations.
However, research on human decision-making suggests that people typically evaluate
information as it is received, and that it may be difficult for people to separate the acquisition
and evaluation of information because the two processes are so intertwined. Recall that
jurors sometimes make initial judgments simply based on the opening statements, despite
the fact that “openers” are not part of the evidence.
3. Jurors are “blank slates” with no or few preconceptions. The law’s emphasis on impartial,
unbiased jurors appears to reflect the assumption that it is possible, given appropriate jury
selection procedures, to impanel a jury whose members have few preconceptions about the
participants and events in the trial.
Yet this assumption is belied by the very techniques used during voir dire to select jurors,
where attorneys actively seek jurors whose biases will favor their side. An attorney might
also try to use voir dire to try to begin to sway members of the panel toward his or her side,
by asking questions in such a way that prospective jurors get a slanted portrayal of the case.
The assumption that jurors bring few preconceptions with them to the jury box is further
eroded if you consider that the process of voir dire may not identify and weed out biased
jurors for a number of reasons. Jury questioning does not always uncover the biases of jurors
who should have been challenged for cause, whether this is due to the fact that the question-
ing simply did not uncover the issue or the juror actively concealed—or was even unaware
of—his or her biased preconceptions or attitudes.
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HOW DO JURORS DECIDE?
The “Story Model” of jury decision-making (Pennington and Hastie, 1993) pres-
ents a detailed theory of how juror decision-making occurs. In this model, jurors
are portrayed as active manipulators of evidence and information who construct an
account of events related to the crime, not merely passive recipients of information
presented at trial. According to the story model, each juror constructs a story or
stories in three steps, and this ultimately determines which verdict is chosen.
First, jurors use trial evidence and real-world knowledge to construct one or
more stories that link the events described during the trial in some causal way.
Jurors actively imagine themselves in the position of participants in the crime
(“How would I have behaved in this situation?”) as they seek to understand what
happened. While constructing a story (or possibly more than one story) that links
events in some causal way, the jurors rely on their own experiences to make infer-
ences, such as the inference that the sight of a knife would cause fear (Pennington
and Hastie, 1993). For example, mock jurors in the case of a defendant accused of a
stabbing constructed different types of stories to account for the fact that a defen-
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366 Your Day in Court: The Trial Begins
BOX 12.14 (continued)
4. Jurors base their verdict only on the evidence. The legal system’s admonition to jurors to
avoid discussing the evidence with anyone during the trial, including other jurors, and the
concern with the possible biasing effects of jurors’ exposure to media sources of information
on the trial are two indicators of this assumption about jurors.
However, research on jury decision-making provides much evidence to the contrary; in
fact, it appears that jury verdicts can and do reflect the influences of many things other than
simply the evidence presented in the case. Such influences can come from an almost limit-
less array of sources, including jurors’ attitudes and experiences, the characteristics and
behavior of the participants in the case, the political climate surrounding the trial, and media
coverage of case-related issues.
5. Jurors are unaffected by group pressures. Ideally, jury deliberations involve jurors dis-
cussing the evidence and sharing their views as they attempt to reach consensus. But where
should we distinguish between attempts to persuade that are not coercive and attempts that
are perceived by the target, and perhaps others, as coercive or even intimidating? The law’s
assumption that jurors will engage in a cooperative process as they deliberate seems to
reflect the implicit assumption that this process will not reflect pressures toward conformity.
Yet, group dynamics are such that the minority faction on a jury, especially if this consists of
a sole juror, may be subject to intense pressures to conform to the majority faction’s view of
the case. (Adapted from Wrightsman, Nietzel, and Fortune, 1994, with the permission of
Brooks/Cole)
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dant was in possession of a knife at the time of the crime. The jurors’ inferences var-
ied depending upon their class backgrounds. Middle-class jurors were more likely
to feel that the defendant’s possession of a knife at the time of the crime indicated
that he planned the attack, whereas working-class jurors were more likely to infer
that the defendant had probably simply been carrying a knife routinely for purposes
of self-defense. In the second step of the story model, the juror learns a set of “ver-
dict representations,” such as the legal distinction between first- and second-degree
murder. In the final step, the juror compares the narrative story or stories he or she
has constructed with the verdict choices to check for a match. The verdict that best
matches the story is chosen, and if no good match is found, the juror should return a
“not guilty” verdict. What determines which story is finally chosen? Pennington and
Hastie’s model describes four “certainty principles” governing the choice:
1. Coverage (How well does the story explain the evidence?)
2. Coherence (Are the parts of the story internally consistent? Is the story
plausible; does it fit with the juror’s knowledge of what happens in the real
world? Is the story complete; does it cover all the main issues, without
leaving too many gaps or requiring too many inferences?)
3. Uniqueness (Is this story the best explanation of events? Or are there other
accounts that explain the evidence just as well?)
4. Goodness of fit (how well do the elements of the story match elements of
the verdict choices? For example, if one of the verdict choices is self-
defense, do the elements of the story fit with this?)
The Story Model suggests some implications for attorneys’ trial strategies. Pre-
senting evidence in the form most amenable to story construction appears more
likely to lead to a verdict consistent with the potential story, compared to other
methods of presentation, such as presenting evidence out of temporal sequence,
organized around the order in which witnesses appear, or thematically organized
around legal issues. Jurors have more confidence in a given story when they have
heard both defense and prosecution evidence presented in story order versus hear-
ing only one side, or neither side, present in story order. One attorney put it thus:
The best trial lawyers are storytellers. They take the raw and disjointed observations of
witnesses and transform them into coherent and persuasive narratives. They develop
compelling theories and artful themes, all the better to advance a client’s cause. . . . But trial
lawyers are not only storytellers. In addition, they are legal technicians, taking the raw
observations of witnesses and organizing them into coherent, legally meaningful narratives.
You can tell a terrific story and nonetheless lose your case—especially if you have failed to
shape it in a way that will be convincing to the trier of fact. (Lubet, 2001, p. 2)
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JURY DELIBERATIONS
In California, the Judicial Council Web site has this advice for potential jurors:
Quite often in the jury room the jurors may argue and have a difference of opinion. When this
occurs, each juror should try to express his or her opinion and the reasoning supporting it. It
would be wrong for a juror to refuse to listen to the arguments and opinions of the others or to
deny another juror the right to express an opinion. Remember that jurors are not advocates,
but impartial judges of the facts. By carefully considering each juror’s opinion and the reasons
behind it, it is usually possible for the jurors to reach a verdict. A juror should not hesitate to
change his or her mind when there is a good reason. But each juror should maintain his or
her position unless conscientiously persuaded to change that opinion by the other jurors.
Following a full and free discussion with fellow jurors, each juror should vote only according
to his or her own honest convictions. (Judicial Council of California, 2000)
When jurors begin the process of deliberation, their first task is to choose a foreper-
son, unless the judge has already done so. The jurors can make this choice however
they wish: They can take a vote, ask for a volunteer, or draw lots. The foreperson’s
task is to help organize the deliberation process, to ensure that the group considers
all the issues, and that the opinions of all are heard. Research finds that men are
more likely than women to become jury forepersons, but it is not clear whether this
is because they are chosen or volunteer more often.
The next task jurors have is deciding how to begin deliberating. In some
cases, jurors will take an initial ballot at the beginning or early on in deliberations,
revealing where the group stands. Research on both jury simulations and the
results of actual trials finds that the verdict typically, but not always, reflects the
initial ballot results (Kalven and Zeisel, 1966).
As the jurors consider the evidence, they may go back and re-enact details of
the crime that were presented in trial or reread important items of written evidence.
Through the bailiff, the jurors may ask the judge for clarification on some of the
evidence, testimony, or jury instructions. The judge’s response may be limited to
simply restating the confusing testimony or instructions again, without adding fur-
ther clarification. By adhering strictly to procedure, the judge may avoid providing
information that could serve as possible grounds for appeal.
Jurors may also attempt to get information that they believe is relevant to
their decision, but which is not a legally permitted factor for consideration. A clas-
sic example of this is the length of the sentence. Jurors are not supposed to consider
the potential sentence the defendant may face if convicted, yet many jurors are
very interested in this. This is perhaps not surprising, reflecting a natural concern
with the proportionality of the punishment in relation to the offense.
Their desire to know may be particularly acute in capital cases, where many
jurors faced with the task of choosing life or death for a convicted defendant want
to know “Is life really life, or is there the possibility the defendant could get out on
parole?” In some cases, jurors in capital cases would have preferred to give a life
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sentence, but chose the death sentence because they could not be sure that a life
sentence would keep the defendant off the streets for good (Bowers and Steiner,
1998). Requests to the judge for this information were answered with the instruc-
tion that they could not be told and should not consider the issue of how long a life
sentence in their particular jurisdiction would actually be.
GROUP DYNAMICS
Juries provide good examples of group dynamics in action. Juries are an example
of groups that are convened for a specific purpose rather than formed naturally.
Thus, juries illustrate groups of people who are brought together for a common
purpose—the task of “doing justice.” Jurors know little about each other before
they begin deliberating, except for whatever information they gleaned about their
fellow panelists during voir dire and perhaps from idle small talk during breaks in
the trial. They cannot be entirely certain how long they will have to spend working
together on their common task, but they know that once their task is done, they
may never see each other again. Therefore, the jurors may not behave in the same
way that they would if they anticipated future interactions with each other.
As the jurors begin deliberating, they may learn that some of them are first-time
jurors, while others may have served before. Regardless, most group members will
be acutely aware of the stakes involved for the parties in the case, especially in a
felony case.
So how do these factors influence the group dynamics of jury decision-
making during deliberations? Recall that according to Wrightsman and colleagues
(1994), the law assumes that jury decisions will be “unaffected by group pressures
or personal wishes.” However, much research on jury decision-making demon-
strates that too often this is not so; in fact, juries provide classic illustrations of the
power of group pressures toward conformity.
Idealized portrayals of jurors, such as the classic Henry Fonda movie Twelve
Angry Men, show jurors arguing passionately to persuade each other on their views
on the basis of the evidence. The arguments use appeals to logic and reason, with
the goal of genuinely convincing the audience of the inherent superiority of the
speaker’s view of the case.
In reality, research shows that the line between persuasion and coercive pres-
sure can be very thin. Jurors in the minority faction face intense pressures to con-
form, varying with the individual makeup of the people on that jury. Jurors do not
want to deadlock because they cannot reach consensus; they want to finish the task.
A lone juror faces especially strong pressures, but having even one other ally is
quite effective in helping a nonconformist resist pressures from jurors in the major-
ity faction. Research cannot tell us how often undue pressure to conform is placed
on jurors in actual cases. But anecdotal information from interviews with actual
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jurors demonstrates that not infrequently, jurors may be subjected to expressions of
disgust, angry comments, taunts, and pleas to change their verdict decision. In one
case, several women jurors reported that the jury foreman and other male jurors
called them “stupid females” and told them that because they were women, they
“didn’t have minds” (Duffy, 1996). In the most extreme examples, a few jurors
have reported that they voted to convict a criminal defendant when they really
wished to acquit (State v. Kaiser [1996]; M.S. v. Stansfield [1996]).
While majority jurors are prevailing upon those in the minority to join them,
they may provide psychological rationales to holdouts that help them to retain dig-
nity while joining the majority. Levine (1992) describes this phenomenon occur-
ring among the jurors in the trial of serial murderer Juan Corona:
Respect is sometimes a two-way street, with the dominant group helping the holdout to relent
by acknowledging the right to dissent and the legitimacy of alternative viewpoints. This
“stroking” process can ease the way to capitulation by enabling the dissenter to maintain self-
esteem at the same time he or she is crumbling. This was the tactic of what had become an
11-person majority for conviction in the Juan Corona mass murder case. Rather than steamroll
the remaining resister into compliance with them, the jury took a day off from voting after six
full days of deliberation and told her to go with her convictions. On the 8th day she switched,
remarking: “I think I’ve changed my mind. Yesterday you gave me a day’s rest and I relaxed
and I saw things differently . . . basically, I now think you people are right and I do think
Corona guilty.” (Levine, 1992, p. 155. Reprinted by permission of James Levine)
However, Wrightsman, Nietzel, and Fortune (1994) question the true rationale for
this juror’s change of heart, noting that earlier during the Corona jury’s delibera-
tions, this same juror had exclaimed “Please, I’ll change my vote. Just don’t hate
me. I’ll change my vote so you can go home to your wife” (Wrightsman, Nietzel,
& Fortune, 1994, p. 334). Regardless of the reasons for this juror’s decision to join
her fellow jurors in convicting Corona, the phenomenon of holdout jurors illus-
trates classic conformity pressures. As with any divided group, once someone from
the minority makes the decision to join the majority viewpoint, this “legitimates
the idea of capitulation so that others with similar views almost always follow suit”
(Levine, 1992, p. 154). Despite the deliberative ideal embodied in the law, such
conformity pressures do not necessarily invalidate the jury’s verdict under the rules
of evidence. In one case where a juror who voted to convict reported that she did so
after being pressured during deliberations, the defendant’s conviction was upheld
by an appellate court, which noted that such pressure “. . . is an inherent and intrin-
sic part of the deliberative process” (Nadvorney and Cantu, 1987, p. 32).
BARGAINING BETWEEN JURY FACTIONS
Because juries often have several verdict choices, there is often room for compro-
mise between different factions on the jury. For example, jurors may have to
choose between convicting the defendant of second-degree murder, manslaughter,
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or acquitting. Given such verdict choices, there is room for negotiation. Similar
opportunities for negotiation and compromise exist in cases involving multiple
counts of the same crime, or multiple charges varying in seriousness. The group
dynamics of jury-room bargaining play an important role in preventing hung
juries, as the case of Joel Steinberg illustrates (see Box 12.15).
“Logrolling” is a particular form of jury group compromise: when there are
multiple defendants accused in the same incident, juries may convict one defen-
dant but not the others, even though the evidence is the same in the joint trial of all
defendants. For example, in one case several police officers were tried on charges
of brutality stemming from an interrogation of a suspected killer of a fellow officer.
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Bargaining Between Jury Factions 371
BOX 12.15
Bargaining in the Jury Room
James Levine describes the negotiations that occurred during the infamous trial of a lawyer on
charges of killing his daughter.
Steinberg, a disbarred lawyer and routine cocaine user, was accused not only of striking a severe
blow to the back of the girl’s head but of failing to get help for 12 hours while she was still alive.
Complicating the trial was the situation of Hedda Nussbaum, Steinberg’s live-in lover, who
allegedly had been viciously brutalized by Steinberg for years. She, too, waited to call medical
authorities until it was too late. At first Nussbaum was also charged with murder, but later the
charges were dropped and she became a witness against Steinberg.
From the beginning of deliberations, the jury was deeply divided . . . the allocation of
moral responsibility between the two principals was a source of dispute. The jury initially split
evenly into 3 factions: those who thought Steinberg guilty of murder (the “hard liners”), those
who favored first-degree manslaughter (the “middle of the roaders”), and those who opted for
second-degree manslaughter because they thought Nussbaum had struck the fatal blow (the
“softies”) . . . in the foreman’s words, ‘we were almost hopelessly divided.’After eight days . . .
the jury arrived at a verdict. They opted for first degree manslaughter, the in-between outcome.
Although at one point the pro-murder contingent reached ten . . . the hardliners eventually
realized that they would never get all 12 jurors to agree on a murder conviction. They then willfully
deviated from the judge’s instructions that they first dispense with the murder charge before going
to the lesser ones, and they concentrated on getting the “softies” to accept the first-degree
manslaughter charge—no mean feat considering that some continued to feel that Hedda Nussbaum
might have been the more culpable. Having accomplished that, the hardliners themselves relented
on the murder charge, even though in their hearts they believed it was warranted. The alternative
was a hung jury, and it was thought preferable to establish some culpability and assure punishment
rather than give Steinberg another opportunity to get exonerated. (Levine, 1992, p. 158)
Postscript: One of the “hardliner” jurors in the case would later say that she regretted not being
able to bring in a murder conviction.
Source: Reprinted by permission of James Levine.
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The jury acquitted four of the officers, but returned verdicts of guilty against three
other officers, although all the officers were tried together, and the evidence was
the same for each defendant (Levine, 1992). How can this seemingly inconsistent
result have occurred? “The verdict seems baffling unless we bring in a plausible
political explanation: defendants were traded off so that neither the pro-police nor
the pro–civil rights forces would come away empty-handed. Defendants are treated
differently to secure a resolution that gives something to both sides in a split jury”
(Levine, 1992, p. 160).
The group dynamics of jury deliberations reflect the influence of psychologi-
cal and political pressures, strategies, and solutions. Jurors bring their own experi-
ences, attitudes, and beliefs with them to the deliberations, and work together as a
group to fashion a verdict that reflects the facts as they perceive them. This means
that even when jurors agree on a verdict, they may vary in their reasons for agree-
ment. For example, interviews with jurors in one case revealed that some jurors
voted to acquit the defendant because they believed he was not guilty of any crime;
others felt he may have been guilty but felt that the government had not met its bur-
den of proving guilt beyond a reasonable doubt (Brill, 1989).
When the jurors are ready to announce their decision, it’s time to call the
bailiff and prepare to re-enter the courtroom, all eyes upon them as they take their
seats in the jury box one last time.
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BOX 12.16
How Do Jurors Perceive Each Other?
In one study, jurors in felony cases generally reported being favorably impressed with the seri-
ousness and sense of purpose shown by their fellow jurors. Many were quite pleased and even
proud of how their jury had come together as a group to tackle the task at hand. However, some
jurors were distressed at what they knew or suspected was misconduct on the part of a member
of the panel, such as when a juror attempted to discuss the case during trial breaks. In another
case, a juror announced upon entering the deliberation room for the first time that he had made
up his mind about the verdict. One juror described how another juror on the panel had refused to
participate in deliberations and instead spent three days reading her book while the others delib-
erated. (Grant, 2000)
THE JURY DECIDES: THE VERDICT
Historically, jury service could sometimes be hazardous to the health, as we saw in
Step 4’s discussion of the treatment of jurors who refused to find William Penn and
William Mead guilty. As we saw, the Penn and Mead trial was a turning point in the
history of juror independence, and today, jurors are free to return the verdict as
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they see fit. They do not need to discuss their reasons for their verdict with anyone.
However, in cases where the jury returns a guilty verdict, the defense may request
that individual jurors be “polled” (questioned) as they sit in the jury box, in order to
affirm that the decision was indeed unanimous. If the jury returns an acquittal, the
decision is final. If the jury convicts, a judge has the power to overturn the verdict if
it appears the evidence would not support a conviction. In practice, however,
judges rarely exercise this power.
In approximately five percent of cases, the jury is unable to agree on a ver-
dict. If the jury informs the bailiff that they are “hung,” the judge may order the
jurors to deliberate further and try their best to reach an agreement. If they are still
unable to reach a verdict, the judge declares a mistrial. Mistrials can occur for
other reasons as well, such as the death of a key party (e.g., an attorney), juror mis-
conduct, or a fatal procedural error that would prejudice the outcome. For example,
in one case a mistrial was declared after it was disclosed that jurors examining
some documents during deliberations had learned about the defendant’s prior con-
victions, which was information that they were not supposed to have. This hap-
pened because jurors had noticed that certain sections of testimony in the
document had been covered with correction fluid, and they held the papers up to
the light to decipher what had been concealed (Gotthelf, 1994).
What does this mean for the defendant? Because the defendant’s trial was not
completed, the prosecutor has the right to decide whether to retry the case, which
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The Jury Decides: The Verdict 373
BOX 12.17
The Impact of Jury Service on Jurors
Interviews with a small group of jurors who served in felony cases provide a glimpse into the
jurors’ experiences (Grant, 2000). The jurors in this study almost uniformly reported a sense of
pride and satisfaction in performing their civic duty, often describing the experience as a “fasci-
nating” opportunity to get an inside look at the workings of the legal system.
In contrast, the jurors’ perceptions of negative aspects of jury service varied greatly. Prag-
matic aspects of jury service, such as lack of parking and poor juror pay, were mentioned often.
Major substantive concerns reported by these jurors included experiencing doubts about the
jury’s decision. For example, some former jurors reported that over a year after their service,
they remained “haunted” by doubts and questions. One former juror reported thinking about the
trial every day and wondering whether he had made the right decision in a complex murder trial.
Another person said it took weeks to “readjust” after serving as a juror in a murder case, and
another described worrying about whether she was being followed by gang associates of the
defendant. One man described how he and his fellow jurors had convicted a teenaged defendant
of attempted murder. Later, said this former juror, he discovered that the young defendant had
received a very long sentence. Upon learning this, said the juror, “I felt like I had killed a child,”
because he believed strongly that such a long sentence was not merited. (Grant, 2000)
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would not violate double jeopardy. The prosecutor’s decision will depend upon a
number of things, including the seriousness of the crime, the resources that would
be required for a retrial, and the prosecutor’s assessment of why the current jury
could not reach agreement. For example, in an unusual case in California, defendant
Taufui Piutau was tried on misdemeanor charges of driving under the influence of
kava (a type of tea with relaxing properties, typically sold in health food stores). The
jury could not reach agreement, and a mistrial was declared when jurors reported
they were hung ten to two in favor of acquittal. The district attorney, asked whether
he would retry the case, commented that “with a split like that in a misdemeanor
case, I can’t remember the last time a case was retried” (Stannard, 2000, p. A17).
JURY NULLIFICATION
In the 1735 trial of John Peter Zenger, a publisher who was accused of printing sedi-
tious material, jurors refused to convict even though it was clear that Zenger had vio-
lated the law. This is often cited as a classic example of jury nullification. Jury
nullification, broadly defined, refers to juries returning a verdict that is inconsistent
with the evidence; in essence nullifying the law by taking it into their own hands. For
example, a jury that acquits a defendant accused of sexual assault not because of lack
of evidence, but due to juror perceptions of the victim, is practicing jury nullification.
A narrower conception of jury nullification would refer only to jurors’ ability
to decide not to apply the law in certain cases, thus acquitting the defendant or
returning a verdict of guilty on a lesser charge than the facts of the case would sup-
port (Abramson, 1994). One possible example here might be the failure of four dif-
ferent Michigan juries to convict Dr. Jack Kevorkian of assisting suicide on four
separate occasions. He was later convicted of murder by a jury after he videotaped
his role in a patient’s death and gave the tape to the 60 Minutes newsmagazine for
broadcast (Silverglate, 1999).
As we saw earlier, juries historically held the power to decide both the law
and the facts in a case. In Sparf and Hansen v. United States (1896), the Supreme
Court confined the power of the jury to deciding the facts in the case, leaving the
judge to decide the law. This meant that juries no longer possessed the legal right
to nullify the law; however, to this day juries retain the power of nullification.
Controversy exists over the question of whether juries should be informed of
their power to nullify. Proponents argue that jury instructions should explicitly
inform jurors that they have the right to nullify, but there is disagreement over how
nullification should be defined. If nullification were narrowly defined, jurors could
be informed that they possess the power to refuse to apply the law. In essence,
juries would have the power to bestow leniency on a defendant, but not to convict a
defendant where the evidence does not support a conviction. Proponents of inform-
ing juries of their nullification powers argue that juries should be able to decide the
law for themselves, because the laws might be unjust, out of date, or not applicable
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in certain cases. Another argument favoring nullification is the idea that because
laws are made to express general principles, the task of jurors is to apply the law to
the specific circumstances of the case. In turn, this requires that they sometimes
interpret the law anew, or ignore it.
Opponents, however, argue that informing juries about nullification defeats
the very purpose of having a system of laws. Allowing juries to practice nullifica-
tion would amount to condoning injustice, as juries might be more likely to return
verdicts based on personal or political biases rather than the evidence. This per-
spective is evident in a California appellate decision upholding a defendant’s con-
viction for statutory rape. At trial, the judge had replaced a juror who didn’t believe
in the law with an alternate. The defendant appealed, but the appellate court’s deci-
sion illustrated judicial concerns about jury nullification: “A nullifying jury is
essentially a lawless jury, . . . Jury nullification is contrary to our ideal of equal jus-
tice for all and permits both the prosecution’s case and the defendant’s case to
depend upon the whims of a particular jury” (Chiang, 2001, p. A3).
However, research on the potential consequences of giving jurors instructions
that inform them of their power of nullification suggests juries do not appear to
take law into their own hands very frequently, or for no reason. Informing jurors of
their power to nullify does not appear to result in the “jury anarchy” which con-
cerns many critics of nullification (Jacobsohn, 1976; Horowitz, 1985; Nieder-
meier, Horowitz, and Kerr, 1999).
Ironically, the practice of jury nullification may be enhanced by the trend
toward mandatory sentences. For example, reports have surfaced of cases where
jurors learned that the defendant, on trial for a relatively minor, nonviolent crime,
was actually facing a third-strike sentence of twenty-five years to life if convicted.
In response, the jurors apparently decided to acquit instead (Chiang, 1996). This
has raised the prospect of a scenario where the defense attorney whose client is
being tried for a crime such as check kiting, may seek ways to subtly “cue” the
jury, hoping they will realize that this is a “three-strikes” case and that they will
choose to acquit the defendant despite having sufficient evidence to convict.
There are indications that jury nullification may be growing, with some cases
suggesting individual jurors and sometimes juries use their decision-making power
to send messages about their perceptions of the criminal justice system in general
or specific laws (Biskupic, 1999). This raises a very interesting question: When a
jury refuses to apply the law, is this a worrisome deviation from the ideals underly-
ing trial by jury—or is it the very embodiment of the jury’s role as the conscience
of the community?
CONCLUSION
The announcement of the verdict in a criminal trial is frequently simply a culmina-
tion of one phase of the criminal courts process. If the defendant is found “not
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guilty,” then the prosecution cannot appeal the verdict.3 In the aftermath of an
acquittal, the former defendant returns to society, the defense attorney may con-
template the lessons learned from a successful defense, and the prosecutor may try
to ask the jurors why they voted for acquittal. Victims, or their families, will
undoubtedly replay the trial in their minds as they contemplate the verdict. The
jurors must now return to their everyday lives, where they can reflect on their expe-
riences and the impact that serving as a juror has made on them.
However, most felony criminal trials result in a verdict of “guilty” (Hart and
Reaves, 1999). In these cases, the verdict is actually a signal for the next critical
steps in the process to begin: the task of determining the appropriate sentence, and
for the defense, the question of whether there are grounds for an appeal. Let us turn
our attention now to the next phase: the question of sentencing.
D I S C U S S I O N Q U E S T I O N S
1. What did you think of Clarence Darrow’s jury selection strategies (presented in Box 12.3)? Do
you think that group members generally share the same attitudes, or not? What does the research
on the relationship between juror characteristics, attitudes, and behavior suggest? Given the
research on the relationship between juror characteristics, attitudes, and behaviors, why do you
think Darrow believed his strategies for juror selection were successful? Is it possible that Dar-
row’s skill as an advocate for his client, rather than his jury-picking techniques, accounted for his
success as a defender?
2. What do you think of the use of peremptory challenges? Take a position:
a. Do you think the use of peremptory challenges increases the likelihood of an impartial jury?
b. Do you think the use of peremptory challenges decreases the likelihood of the impartial jury?
3. Should peremptory challenges be abolished? Why or why not? Give specific reasons.
4. Should students be considered a “cognizable group”? Why or why not?
5. Is the jury’s power, if not their right, to nullify a necessary part of flexibility in the jury system, an
illustration of jury discretion that gives the system its value in tailoring justice? Or is it an oppor-
tunity for citizens to do an “end run” around the law by disregarding the law and the facts?
6. Amar, discussing jury decision rules, comments: “Preserving unanimity might also be undemo-
cratic, for it would create an extreme minority veto unknown to the Founders” (1995, p. 1190).
What do you think he means? Do you think this statement has merit? Why or why not?
7. Consider the issue of religious appeals by prosecutors during closing arguments. Why might such
arguments be considered improper by courts? Think about how such arguments could influence
the jury and then discuss reasons. Would religious appeals to mercy on the part of defense counsel
pose similar problems? Why or why not?
N O T E S
1. Note that the use of jury questionnaires does not in and of itself mean that scientific jury selection
strategies are being used. Depending upon how such questionnaires are constructed and inter-
preted, they may simply represent attempts to gather information about prospective jurors, rather
than being part of a concerted strategy based on social science techniques. The use of jury
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questionnaires illustrates the fact that there is no hard and fast distinction between “scientific” and
“nonscientific” jury selection techniques; rather, the distinction is a matter of degree reflecting not
only how information is gathered but how it is analyzed and applied.
2. The reason that gender orientation can be considered a cognizable group in California, when it has
not been designated as such by a U.S. Supreme Court decision, is straightforward: While states
may not provide fewer constitutional protections than those provided by the U.S. Constitution,
U.S. Supreme Court decisions, or federal statutes that are nationally applicable, states can choose
to provide greater constitutional protections.
3. There are a few very narrow exceptions where the government may be able to appeal an acquittal,
such as when the acquittal was obtained through judicial corruption.
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