A recent article in the New York Times by Benjamin Weiser highlights a critical problem with those seeking justice in the criminal courts of America:  the vanishing jury trial. I have been practicing law in the Boise, Idaho, area for eighteen years. I have been a litigator for sixteen years. I have been a criminal defense attorney for ten years. I have handled many, many, criminal defense cases and, yet, if I think hard enough, I can count the number of criminal jury trials I have had. Quite frankly, that is a shame. But it is not just here in Boise. It is not just in state court but in federal court as well. And it is not just me. My colleagues are in the same boat.

According to the article, Judge Lewis A. Kaplan, a federal district court judge in New York, thinks the vanishing jury trial is “a loss…because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.”

In my view, the main reason for the lack of jury trials is the disparate power prosecutors wield in both federal and state court. The article backs me up at least as far as federal court trials are concerned: “Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.”

For example, the federal sentencing guidelines have an “acceptance of responsibility” provision which, for the most part, applies only to guilty pleas and is not available for those who exercise their right to a jury trial. The provision can result a reduction of the recommended guideline sentence of YEARS. Or, the prosecutor may agree to amend the charge so no mandator minimum sentence – some as great as twenty years – applies. Many clients would rather have a reduced sentence than take their case to trial and make the government prove their crime beyond a reasonable doubt to a jury of my client’s peers. Although, in Idaho, there are not sentencing guidelines, prosecutors routinely make plea offers to the accused which are well below what my client would face if found guilty after trial.

In order to bring charges against a person, the prosecutor need only establish their is probable cause to believe a crime has been committed and my client committed it. This is a VERY low standard. At trial, the standard is “beyond a reasonable doubt” and is VERY difficult to prove. According to one retired federal judge: “because most pleas are negotiated before a prosecutor prepares a case for trial, the ‘thin presentation” of evidence needed for indictment’ is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.”

If you need advice on whether you should plead or go to trial in a case you are accused in, please do not hesitate to contact me. I am ready to assist. I do all I can to stay sharp, up-to-date on the law and the use of technology in the courtroom. I do this because, when my client chooses to put to the government to its burden, I am prepared. I am ready to fight with all that is necessary to ensure my client receives what the United States Constitution requires: their guilt proved beyond a reasonable doubt. If the government cannot meet that burden, it should never have brought the charges in the first place.

If you or a loved one has been charged with a crime, please contact me. I would be glad to help.