Monday's Wall Street Journal reports on statistics that felony defendants were convicted in 61% of bench trials, while juries convicted 67% of felony defendants. But fewer than 20% of defendants waive their rights to a jury trial. Are they making a mistake? Are New York judges soft-hearted?
Not necessarily. After all, the statistics reflect apples and oranges. Because the criminal defendant has a right to a jury trial, such a defendant is rarely, if ever, going to choose a bench trial with a judge considered pro-prosecution. It wouldn't surprise me if there were several such judges who never had a bench trial in the five-year period reported on. Imagine a world where the jurisdiction has eleven judges who are one to eleven percent more likely to rule in favor of the defendant than the average jury, but 49 judges who are one to twenty percent more likely to rule in favor of the prosecution than the average jury. Assuming criminal defense lawyers knowledgeable about judge's tendencies, we'd see the same sort of statistical results from this hypothetical law-and-order judiciary—about 6% higher acquittal rates for bench trials than for jury trials, but fewer than 20% of defendants picking bench trials—as we do in New York City.
What I found most fascinating in the article is the argument "legal experts" made for when a bench trial makes sense: the cases where "a jury could be swayed by emotion for the victim, overwhelmed by technical evidence, or confused by complicated legal instructions." Or, in other words, the same scenario as just about every civil product liability trial.
It's also surprising that prosecutors win fewer than two thirds of their trials. Again, there is an iceberg effect, as someone truly innocent is less likely to plea bargain and someone faced with overwhelming evidence is more likely to. But such a statistic does seem to suggest either overaggressive prosecutors or rampant jury nullification.