The USA is one of the most prosperous countries with the oldest constitution and judicial system in the history of the world. It excels at innovation and mass production — and nowhere is that more true today that the US criminal judiciary system is far from the ideal of justice which have been established by the Founding Fathers. The fate of the accused overwhelmingly is not in the hands of jury trial, but is decided by plea bargains concluding behind closed doors.  

Plea bargain was originally an American phenomenon during the 1970s, but since that time it has widespread throughout the world. Its essence is that the defendant will plead guilty to a less serious charge, or to one of the several charges, in return for a more lenient sentence. 

On one hand, a plea bargain allows the criminal defendant to avoid risk of conviction at trial on a more serious charge. For example, in 2012, the average federal drug conviction contained 5 years and 4 months after a plea bargain, while after a jury trial and the defendant found guilty, the average conviction increased to 16 years. And the prosecutor has the opportunity to close the case and save resources which are not inexhaustible. Also, the American jury trial is always a lottery, thus prosecutors don’t want to risk it. 

But look from the other side, in 2020, nearly 63 000 people were defendants in federal criminal cases, but less than 2% of them went to trial. The overwhelming majority (91%) pleaded guilty instead, while the remaining 7% had their cases dismissed, according to the data collected by the federal judiciary. Can we be sure that all 58 000 people pleading guilty really committed those crimes and the system does not take away a constitutional right to a justice trial by jury? 

For example, Barnetts’ brothers case – they were convicted of Ms. Crawfords’ murder in 2008, even though no physical evidence connected any of them to the crime but “confessions” of another participant (with a substance use disorder at the time) do not comport with the facts of the crime scene. They appealed the decision and in 2010, West Virginia Supreme Court reversed their convictions, based on the fact that they were not afforded a fair trial, and ordered a new trial. But  both of  Barnetts accepted an Alford plea to avoid the prospect of a second trial for a crime they didn’t commit. An Alford plea — allows the defendant to maintain their innocence and receive a lesser sentence, while acknowledging that the State has enough evidence for a conviction. 

So when people face a plea deal that assures a substantiality reduced sentence or even freedom, many innocent people accept being guilty rather than gamble with the possibility of spending decades in prison, or, worse, death penalty. However, in 2018, after 10 years in prison all charges against Philip and Nathan Barnett were dismissed because of DNA testing which proved that they hadn’t committed this crime. It’s not luck but sad statistics — since 1989, 11% of the nation’s 375 DNA-based exonerations have involved people who pleaded guilty of serious crimes they did not commit. According to the National Registry of Exonerations, 591 of the 2,849 known exonerees (whose innocence was proven either by DNA or other means) pleaded guilty.

Our reality follows that prosecutors routinely resist providing jury trials to individuals who request them. Preferring plea bargain which remains a legal way to decide a case, but can exist only under ideal conditions where it would have advantages for everyone: the prosecution, the defense, and the defendant. While in real life, it is invariably offering the accused an «easy way» in the form of their arrest, and only the prosecution side wins. 

The flip side to that coin is what happens with 9% of cases which go to trial and why nearly 7% of people have been dismissed? Our answer lies in the jury trial system. 

The USA justice system utilized two types of juries: the investigative grand juries and the petit jury, also known as the trial jury. Despite the same duties to hear evidence and make decisions regarding criminal justice, both have several differences. 

 To eliminate weak cases  and protect defendants from facing trial based on unfounded charges, the criminal justice system generally requires the prosecutor to establish that sufficient causes exist to support their charges. The prosecutor has to convince an independent decision-maker — a judge or grand jury — that case has merit and should go to trial. While in some states (Alabama, Massachusetts, Texas, etc.) grand juries are required for certain serious crimes, but in others (Arizona, California, Indiana etc.) – the prosecutors might have a choice between presenting a case to a grand jury or going before a judge in a preliminary  hearing.  

So, the grand jury is a group of citizens convened by the federal government to determine if probable cause exists to believe that a person committed a federal crime. However unlike a preliminary hearing held in court with the defense side present, there are no lawyers except for the prosecutor. Grand jurors see and hear only what prosecutors put before them, while actually prosecutors have a duty to present «justificatory» evidence — that suggests that a defendant might not be guilty — here all hopes fall under the prosecutor’s conscience. 

In part because there is no one on the «other side» to contest the prosecutor’s evidence, grand juries almost always indict as requested by the prosecutor. Mostly, it can be explained as grand jurors are not adept in evaluating evidence as judges do — therefore, it is easier to convince a grand jury than a judge in the necessity of the court. 

Another benefit for prosecutors in grand jury proceedings is the rule of secrecy whereas preliminary hearings are open to the public. This principle is meant to encourage witnesses to speak freely and to protect the falsely accused who is exempted from exposure that they have been under investigation. While for the prosecution, it provides control of information. 

At the end, grand juries need a majority of 2/3 or 3/4 agreement of members for an indictment (the number depends on the jurisdiction). However, even without a grand jury indictment, the prosecutor has a possibility to bring the defendant to trial  by demonstrating enough evidence to the judge to continue with the case. 

Therefore, the final option after rejecting a plea bargain is fighting the case at trial by letting a petit jury decide whether the prosecution can prove every element of the offense against the accused beyond a reasonable doubt. 

The jury trial was included in the constitution by the Founding Fathers as prevention of tyranny of government by providing the voice of people to civil and criminal justice. But  what is hidden behind those twelve people whose mission is dispense justice and determine the fates of people? 

First of all, when a case is called for trial, randomly selected people are chosen for appearing before the trial judge and attorneys of both sides. They will have a long path consisting of “voir dire”, “challenges for cause and peremptory challenges”, then a final step — “striking the jury”. There is one essence behind all these names — make sure all of the juries are sane, impartial and to favor either prosecution or defense. So in the courtroom previously filled with hundred people, there remain only from 6 to 23 juries (vary of State). Then, the jurors are sworn in, which ends jury selection and begins the next stage — trial process. 

It usually begins with the open statement from the prosecutor and the defense attorney, so this is their opportunity to give the jury a preview of the testimony and evidence. Nevertheless in some jurisdictions the defense can deliver their opening statement after the prosecution has «rested» (completed the presentation of their case) — which gives the jury the opportunity to form a one-sided picture before arguments from the opposite side. 

The main goal of prosecution is proving the case with reasonable doubt, so it presents the case by calling witnesses and introducing evidence. All witnesses are subject to cross-examination by the defense. When prosecution is finished, the defense can witness and introduce evidence, but it’s optional as they have no burden. 

The defendant also has the option as a constitutional right not to testify. But even if the jury will be instructed that the defendant refuses to testify, it cannot be used against them while deliberating. This choice and so the absence of testimony from the first person in the case can create reasonable doubts and questions the jury. All defense witnesses (including defendant if they testify) will be a subject to cross-examination by the prosecution. 

The final steps before jury deliberations — are closing arguments from both the prosecution and the defense in which they summarize evidence and explain why the jury should render a «guilty» or «not guilty» verdict respectively. This procedural sequence for criminal cases is intended to balance the impact of both parties on the jury’s final decision. However since, the prosecution has the burden of proof, they are then entitled to make a concluding argument, sometimes called a rebuttal . This is a chance to respond to the defendant’s points and make one final appeal to the jury. It also places the defense at a distinct disadvantage. 

Afterwards the judge instructs the jury about what law applies to the case and how to carry out its duties. 

So, the jurors heard the evidence, listened to the arguments of both parties and were provided with the instructions on the relevant law by the judge. It is then time to deliberate and decide whether the defendant is “guilty” or “not guilty” of the offenses charged. It’s forbidden to privately communicate with anyone involved in the trial, doing one’s own research or  looking at any media reports. But jurors on trials of high profile defendants may not be able to avoid the barrage of negative pre-trial publicity. Some research suggests jurors who are exposed to negative publicity are much more likely to judge the defendant guilty, compared to the subjects exposed to less pre-trial publicity.

Here is the point where the thread has been leading through the entire text breaks: — prosecution has some inherent advantages than defense attorney in the jury trial, but the jury is the deciding factor. 

For example, in August 2020, during protests that followed the police shooting of Jacob Blake, the 17-year-old Kyle Rittenhouse killed two people and injured another one, afterwards he was charged with five felonies. In November 2021, by unanimous decision of jury he was found not guilty, so in this case the defense attorney won. The benefit was in the hands of the defendant with his boyhood and favorable judge who banned anyone in the court from labelling the shooting victims as victims. Despite the fact that the jury each day rode to court on a bus that has its windows covered so they don’t see any signs or political messages outside the court — is there any guarantee they didn’t have preferences? They didn’t follow conservative media which painted Rittenhouse as a hero? 

Another case took place in February 2020 in Georgia state where during routine jogging a young  black man, Ahmaud Arbery, was shot by father and son. Same arguments from defense attorney that it was «self-defense» as it was with Rittenhouse with little difference that there in November 2021, jury unanimously said «guilty» with life sentence for both men. But could this verdict be different if there are not numerous protests supporting «Black Lives Matter»? Or video that was anonymously uploaded on YouTube witnessing it was a deliberated cold-blooded murder?

The truth in the modern American jury trial system is as follows: the fair is on the side of political preferences and tendency. Theoretically, the system provides some benefits to the Prosecution as the possibility to impanel a grand jury or the rebuttal, but, in fact, the real one «last word» will always stand by a jury which, unfortunately, consists of ordinary people with their own backgrounds and preferences being influenced by the media and pressured by society. So if white policeman is accused of injuring or killing black man, it’s obvious that advantages will be on the defender’s side, or it would not be a trial, at all, as practically we can observe it (Jacob Blake case). In other situations, there is the chance that benefits can be on the prosecution’s side, but would it be the side of truth or another victim of political preferences? 


  • Stuntz, William J. (2004). “Plea Bargaining and Criminal Law’s Disappearing Shadow”. Harvard Law Review
  • Israel, Jerold H.; Kamisar, Yale; LaFave, Wayne R. (2003). Criminal Procedure and the Constitution: Leading Supreme Court Cases and Introductory Text. St. Paul, MN: West Publishing

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