CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, February 18, 2010

Gershowitz on Jury Trials and Drunk Driving

Gershowitz_adam Adam M. Gershowitz (University of Houston Law Center) has posted Twelve Unnecessary Men: The Case for Eliminating Jury Trials in Drunk Driving Cases on SSRN. Here is the abstract:

Over the last few decades, states have imposed tougher punishments on drunk drivers. This article argues that increasing punishments is counter-productive. If legislatures are seeking to hold guilty offenders accountable and deter drunk driving generally, they should keep punishments low and instead abolish the right to jury trials. Under the petty offense doctrine, the Supreme Court has authorized states to abolish jury trials when defendants face a maximum sentence of six months' incarceration. Social science evidence has long demonstrated that judges are more likely to convict than juries, particularly in drunk driving cases. And researchers have also found that the certainty of punishment, not the severity of punishment, is the key factor in maximizing deterrence. Thus, by keeping maximum sentences for most drunk driving offenders at six months or less, states can abolish jury trials, thereby raising conviction rates and improving general deterrence. Additionally, bench trials will be far more efficient because the greater certainty of conviction will give defendants an incentive to plead guilty rather than taking their cases to trial. When trials do occur they will be much faster because there will be no need to select juries, and lawyers will have to present far less background information to already knowledgeable judges. At present, only a handful of states have eliminated jury trials for drunk drivers. This article outlines the specific steps that states should take to abolish jury trials and thereby increase convictions, maximize general deterrence, and more efficiently handle one of the most common crimes in the United States.

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Just got back from court, on a DUI case, and was amazed at the nerve of the police officer who was whining about wanting to go home after 30 minutes of waiting. I thought this was ironic since I knew the officer's contract paid him 4 hours of overtime for every court appearance. My client previously told me that the officer asked him to send in his request for a hearing in his ALR proceeding, and I knew this was because the officer wanted the additional four hours of overtime for attending that hearing.

When I asked to see the records on the testing device, the lab tech told me he had it. Yet when I checked the serial numbers didn't match. When I told the prosecutor, he said he would need a half hour to get the right records from the police station.

Long story short, we worked out a deal that the state and the client were happy with while waiting for the tech to arrive.

But now I read that a law professor, who's likely never represented a person and perhaps never been in a courtroom, believes we should abolish jury trials for this offense, in which the police union and private industry has huge financial incentives to see prosecutions rise and intensify.

Bench trials in DUI cases, by overburdened judges, quickly degenerate into "slow pleas."

I spoke to a public defender who had represented thousands of DUI defendants and yet never had a trial. Not once. And she was someone I considered one of the better PD's!

Jefferson "consider[ed] "trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution." Thus, abolishing this right in DUI prosecutions guarantees more innocent people will be convicted and the government will stray from the Constitution in these prosecutions.

Efficiency perhaps, at the cost of effectiveness.

Posted by: David | Feb 19, 2010 10:59:35 AM

Bad idea. Bench trials in DUI cases are 'slow pleas.' Jefferson was right when he said, "I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution."

Efficiency yes, but at the expense of nearly all effectiveness. Ask this theorist if he's ever seen a DUI trial, or the inside of a courtroom for that matter.

Posted by: David | Feb 19, 2010 3:46:52 PM

In Michgan, defendants have a state constitutional right to a trial by jury in all criminal cases. Careless driving used to be a 10-day, and/or $100, misdemeanor, and being a minor in possession or tobacco a $10, and/or 5-day, misdemeanor. I never tried a minor-in-possession-of-tobacco misdemeanor, but I've prosecuted, and defended, careless-driving tickets before juries.

Posted by: Greg Jones | Feb 23, 2010 8:36:38 AM

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