“The Right To A Jury And The Rise Of Guilty Pleas Across Common Law Countries”

The title of this post is the title of this new essay authored by Carissa Byrne Hessick now available via SSRN.  Here is its abstract:

Juries have long been considered a key common law institution, yet their use has become quite uncommon in common law systems over time.  Rather than trials by juries, most criminal cases are instead resolved by way of a guilty plea.  The prevalence of guilty pleas is not merely a matter of defendants’ independent choices to accept responsibility and give up the right to a trial.  Common law countries have adopted various legal structures over the past half century that incentivize guilty pleas and discourage trials. 

This essay will document the decline of jury trials and the rise of guilty pleas in in five common law countries-Australia, England & Wales, New Zealand, Scotland, and the United States.  The essay will begin by identifying the formal right to a jury trial in these countries, including variations on that formal rightnamely whether it is enshrined in a written constitution, protected only as a matter of statute, or merely accepted as a matter of tradition.  The essay then turns to modern practice, chronicling both the rates of guilty pleas and the formal legal structures that incentivize defendants to plead guilty.  The essay will conclude with some observations about why the jury, which was once perceived as a cherished common law institution, has become a bureaucratic hurdle to be overcome in the name of efficiency.