The Uneven Bulwark: How (and Why) Criminal Jury Trial Rates Vary by State

Abstract

Forty-five years since the U.S. Supreme Court first recognized the right to a criminal jury trial as “fundamental to the American scheme of justice,” jury trial rates (the prevalence of jury trials relative to bench trials) in American criminal adjudication actually vary dramatically by state. A sizable body of scholarship has generally explored the decrease in criminal trials, but this “Vanishing Trial” literature has largely ignored the notable state-by-state disparities in jury trial rates. After reviewing the historic role the Framers expected the jury trial to play in criminal adjudication, this Comment analyzes the existing data on jury trial rates and identifies surprising disparities from one jurisdiction to the next. The Comment then explores various state practices that may be sources of these variations, often pushing the jury trial to the margins of criminal adjudication and disadvantaging those accused of wrongdoing. The Comment concludes by contrasting the Supreme Court’s recent jurisprudence celebrating the centrality of the jury trial with the lived experiences of criminal defendants, and argues for a more substantive understanding of the Sixth Amendment’s trial by jury guarantee.