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Judges Acquit More Than Federal Juries

Would Enron defendants Ken Lay and Jeff Skilling have fared better with a bench trial rather than a jury trial? Most likely, their lawyers never seriously considered that option -- and I would not have either until I read this original post and the  follow-up by Volokh guest blogger Andy Leipold, who found that criminal defendants stand a better chance of acquittal before a jury. Leipold summarizes his findings:

First, I found that the gap between bench acquittal rates and jury acquittal rates was quite large: over the 14 years I studied, the average conviction rate in jury cases was 84%, while judges convicted slightly more than 50% of the time. Second (using other data), I found that this gap was a recent phenomenon. Between the early 1960s and late 1980s, the conviction rates for judge and jury was roughly the same; the 20 years before that, judges actually convicted much more often than juries.

Leipold asked readers for their thoughts on what factors might explain the acquittal gap between bench and [jury]box. Reasons included (1) judges "grade on a curve" and, after sitting through 20 cases involving violent crimes, might not find a more minor crime as serious whereas a jury would not share this context; (2) defendants will select those judges who they believe will be more inclined to acquit; (3) judges are bound by fixed sentencing rules so rather than sentence a defendant of a nonserious crime to a lengthy term they avoid that dilemma through acquittal; (4) judges might better understand the complex elements of certain corporate crimes and, unlike a jury, would recognize when the prosecution failed to carry its burden and (5) some judges may just have something against prosecutors.

This week, Leipold will continue to blog about factors that he examined, including type of case, seriousness of charge, type of defense lawyer and strength of the evidence. And he welcomes comments on his preliminary law review article. Leipold's work strikes me as one of the more interesting and useful applications of the now trendy Empirical Legal Studies line of scholarship.

Posted by Carolyn Elefant on June 27, 2006 at 06:24 PM | Permalink | Comments (3)


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