Wednesday, October 21, 2015
William T. Pizzi has posted Comparative Reflections on Duncan v. Louisiana and Baldwin v. New York (Loyola of Los Angeles International and Comparative Law Review, Forthcoming) on SSRN. Here is the abstract:
This article takes a look back at two of the major opinions of the criminal procedure revolution - Duncan v. Louisiana and Baldwin v. New York - and contends that, in retrospect, extending the right to jury trial to all felonies and misdemeanors was a mistake. Instead of protecting defendants from the power of the state, these decisions have had the opposite effect: criminal trials are increasingly rare and those defendants who dare to insist on their rights pay a substantial and sometimes brutal price if convicted.
The article makes its case comparatively by taking a look at two other common law countries - England and Canada. Each has two trial courts and two trial models for most felonies and all misdemeanors. The two models are distinguished in such a way that it is usually to the strong advantage of both prosecutors and defendants to opt for the simpler nonjury trial model if possible. Prosecutors get a much shorter trial and defendants are assured a rather lenient sentence if they are convicted. This contrasts sharply with the United States where only one trial model is available and it is strongly to the prosecutor’s advantage to charge as high as ethically possible for plea-bargaining leverage.
We often lament “the vanishing trial” in the United States. But Canada and England show there are options we could take to make more trials available for defendants without requiring additional resources. But, first, we must begin by reconsidering the wisdom of what the Court did in Duncan and Baldwin.