Ambiguity aversion and the criminal process

Notre Dame Law Review

Volumn 81, Issue 4, 2006, Pages 1495-1551

  Segal, Uzi ^a   Stein, Alex ^b  

^a BOSTON COLLEGE   (United States)

^b YESHIVA UNIVERSITY   (United States)

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EID: 33750025899     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (296)

1. See Marc Galanter, Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV. 95, 97-100 (1974) (stating that repeat players, such as criminal prosecutors, can play the odds to maximize returns over a long series of cases);
2. see also L. JONATHAN COHEN, AN INTRODUCTION TO THE PHILOSOPHY OF INDUCTION AND PROBABILITY 47-53 (1989) (identifying the limits to which a repeat player can rationally rely on a general frequency of events);
3. P.A. Samuelson, Risk and Uncertainty: A Fallacy of Large Numbers, 98 SCIENTIA 108 (1963) (demonstrating, inter alia, that subdividing risks across cases is a more promising risk-management strategy than a continual replication of identical independent risks).
4. The prosecution only cares about it in a few high-profile cases. See Judith L. Maute, "In Pursuit of Justice" in High Profile Criminal Matters, 70 FORDHAM L. REV. 1745, 1747-50 (2002) (reporting that high-profile cases feature overzealous prosecution and extravagant expenditures by the law enforcement agencies);
5. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 534-38, 542-46 (2001) (describing prosecutors' different incentives in routine and salient prosecutions: in routine cases - typically handled by local prosecutors - prosecutors economize their efforts by obtaining as many convictions as possible through early plea bargaining in order to satisfy the public at the lowest possible cost; in salient cases - typically handled by federal prosecutors - prosecutors expend efforts in order to obtain experience and publicity).
6. See, e.g., Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463, 2471 (2004) (observing that prosecutors uniformly care about their conviction statistics because "[f]avorable win-loss statistics boost prosecutors' egos, their esteem, their praise by colleagues, and their prospects for promotion and career advancement");
7. Steven D. Dillingham, Performance Measurement: Beyond Conviction Rates, PROSECUTOR, Nov.-Dec. 2002, at 9, 9, 14 (observing that conviction rates are considered to be prosecutors' "key performance indicators" and criticizing misuses of this criterion);
8. Jennifer L. Mnookin, Uncertain Bargains: The Rise of Plea Bargaining in America, 57 STAN. L. REV. 1721, 1722-23 (2005)
9. (reviewing GEORGE FISHER, PLEA BARGAINING'S TRIUMPH: A HISTORY OF PLEA BARGAINING IN AMERICA (2003)) (analyzing Fisher's claim that prosecutors tend to plea bargain to enhance their win rate).
10. See GEORGE FISHER, PLEA BARGAINING'S TRIUMPH: A HISTORY OF PLEA BARGAINING IN AMERICA 230 (2003) (observing that plea bargaining "became the dominant force in criminal procedure" and that it "grew so entrenched in the halls of power that today . . . it can grow no more");
11. MIKE MCCONVILLE & CHESTER L. MIRSKY, JURY TRIALS AND PLEA BARGAINING 327-37 (2005) (describing and explaining the displacement of trial by plea bargaining).
12. See infra notes 39, 62-70, 182-257 and accompanying text. This dislike of ambiguous probabilities stands apart from a person's aversion towards risk. Risk aversion is a general reluctance to gamble that persists even when the relevant probabilities are known. See infra notes 97-100, 109-12 and accompanying text.
13. See infra Part II.
14. See, e.g., Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1912 (1992) (observing that plea bargaining "is the criminal justice system").
15. To maintain methodological clarity, we describe bench trials as unambiguous, which means "unambiguous relative to jury trials." We also acknowledge that risk aversion (as opposed to aversion towards ambiguity) may exist in both bench and jury trials. See infra notes 97-100, 109-12 and accompanying text.
16. See, e.g., RANDOLF N. JONAKAIT, THE AMERICAN JURY SYSTEM 18-24 (2003) (stating the conventional wisdom that perceives juries as protecting individuals from being abused by the government);
17. John B. Attanasio, Foreword: Juries Rule, 54 SMU L. REV. 1681, 1681-82 (2001) (restating the traditional view under which "[t]he jury is one of the key protections of individual rights, shielding the individual against the government. Before government can fine, imprison, or kill a member of the community, that person has a right to a jury trial").
18. By this and similar statements we mean, once again, that the probability's upward adjustment in a bench trial is negligible relative to jury trials.
19. The defendant also may have reasons to believe that jurors will be biased in his or her favor. This scenario is unlikely because jurors, unlike judges, can be substituted by others (either for cause or following peremptory challenges). See infra notes 56-59 and accompanying text.
20. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 2003, at 447 tbl.5.43 (Ann L. Pastore & Kathleen Maguire eds., 2004) [hereinafter SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS], available at http://www.albany.edu/sourcebook/ (reporting, in relation to federal prosecutions, that, on the average, a bench trial is about four times faster than a jury trial);
21. see also Vikramaditya S. Khanna, Double Jeopardy's Asymmetric Appeal Rights: What Purpose Do They Serve?, 82 B.U. L. REV. 341, 398 n.219 (2002) (arguing that jury trials are generally costlier than bench trials).
22. Khanna, supra note 12, at 398 n.219.
23. See U.S. CONST. art. III, § 2 ("The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . ."); id. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial, by an impartial jury . . . .").
24. See FED. R. CRIM. P. 23(a), under which the defendant can waive his or her right to a jury trial and switch to a bench trial. Effectuation of this waiver depends on the prosecution's consent and the court's approval. See Singer v. United States, 380 U.S. 24, 26, 36-37 (1965) (upholding the constitutionality of FED. R. CRIM. P. 23(a) and reaffirming the rule that criminal defendants cannot unilaterally choose a bench, as opposed to jury, trial). This rule is adopted in most jurisdictions across the United States. See infra notes 26-27.
25. Justice White may have had it in mind when he observed that "[e]ven where defendants are satisfied with bench trials, the right to a jury trial very likely serves its intended purpose of making judicial . . . unfairness less likely." Duncan v. Louisiana, 391 U.S. 145, 158 (1968).
26. In the constitutional language, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V.
27. See WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE §§ 25.1(a)-(b), 25.3 (3d ed. 2000).
28. See Kate Stith, The Risk of Legal Error in Criminal Cases: Some Consequences of the Asymmetry in the Right To Appeal, 57 U. CHI. L. REV. 1, 17-27 (1990).
29. U.S. CONST. amend. V (providing that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury").
30. See United States v. Navarro-Vargas, 408 F.3d 1184, 1196-98 (9th Cir. 2005) (observing that in federal and most state jurisdictions, grand jurors are instructed to return an indictment upon finding a probable cause to believe that the accused is guilty of the offense charged).
31. Minnesota has a different grand jury model. This model instructs grand jurors that they are "not obliged to return an indictment, even though . . . there is probable cause, if [they] do not feel there is a reasonable prospect of a conviction." MINN. R. CRIM. P. 18.07.
32. See LAFAVE ET AL., supra note 18, § 15.1(d)-(g) (listing and explaining the differences between the indictment and information jurisdictions).
33. Cf. Adam H. Kurland, Providing a Federal Criminal Defendant with a Unilateral Right to a Bench Trial: A Renewed Call To Amend Federal Rule of Criminal Procedure 23(a), 26 U.C. DAVIS L. REV. 309 (1993). Professor Kurland proposes to allow a defendant to choose between a jury trial and a bench trial for reasons different from ours. According to him, some defendants may want to escape from biased and incompetent jurors - an observation pertaining in particular to complex and high-profile cases. Professor Kurland also believes that a defendant's right to select the trial-mode will affect only a few cases and "will work no drastic shift in federal criminal law" except for "complex and high profile cases, where the defendant's decision to elect a bench trial is the most compelling." Id. at 364. We estimate the effect of the proposed right as most substantial. Under our theory, the right to opt for a bench trial will prevent many thousands of defendants from being forced into harsh and inefficient plea bargains. As mentioned at the outset, plea bargain is the prevalent method of case disposition in both state and federal courts. Focusing solely upon trials is therefore methodologically wrong.
34. See supra notes 14-15.
35. See Kurland, supra note 24, at 322 nn.40 & 42, 323 n.43 (listing numerous jurisdictions that follow the federal model, with and without variations); see also People v. Dist. Court, 953 P.2d 184, 186 (Colo. 1998) ("[T]he People may refuse to consent to the defendant's request to waive a jury trial, so long as that refusal comports with a defendant's due process rights as provided in the United States and Colorado Constitutions"); State v. Dunne, 590 A.2d 1144, 1146-51 (N.J. 1991) (holding that defendants in New Jersey courts have no constitutional right to a bench trial, but the trial court has a discretion to grant the defendant's bench-trial request in accordance with the following guidelines: "At one end of the scale, tilting in favor of jury trial, will be the gravity of the crime. The higher the degree of the crime, the greater the weight given to that factor. Other factors that will tip the scale will be the position of the State, the anticipated duration and complexity of the State's presentation of the evidence, the amenability of the issues to jury resolution, the existence of a highly-charged emotional atmosphere . . . , the presence of particularly-technical matters that are interwoven with fact, and the anticipated need for numerous rulings on the admissibility or inadmissibility of evidence."); State v. Oakley, 72 P.3d 1114, 1118-20 (Wash. Ct. App. 2003) (holding that Washington statutes granting the State the right to demand a jury trial over a defendant's objection does not violate the Washington Constitution because defendants have no constitutional right to a nonjury trial).
36. See supra note 26. In State v. Burks, 674 N.W.2d 640 (Wis. Ct. App. 2003), the Wisconsin Court of Appeals affirmed a trial court's decision to turn down the defendant's request for a bench trial, consented to by the State. The trial court reasoned that "'assessment of a person's intent is something which is quintessentially suited for a jury of 12 citizens. The virtue that the jury brings to our courtroom is that they carry with them the communal assessment of the ethics and standards from our community.'" Id. at 643. The court of appeals held that "[a]lthough the right of a defendant in a criminal case to be tried by an impartial jury is well-entrenched in both the federal and state constitutions, a defendant does not have a reciprocal constitutional right to waive a jury and be tried by a judge." Id. at 644. For that reason, it decided that like the prosecution's decision to withhold consent to a defendant's request to waive his or her right to a jury trial, the trial court also need not explain its decision to withhold its approval, and absent extraordinary circumstances not present here, its decision to withhold approval, like the prosecution's decision to withhold consent, is not reviewable. Id. at 645.
37. N.Y. CONST. art. I, § 2 (providing that "[a] jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense"); N.Y. CRIM. PROC. LAW § 320.10(2) (McKinney 2002) (requiring the court to approve the defendant's waiver of a jury trial and conduct a bench trial instead "unless it determines that it is tendered as a stratagem to procure an otherwise impermissible procedural advantage or that the defendant is not fully aware of the consequences of the choice he is making"). Courts interpret these provisions as generally permitting defendants in noncapital cases to opt for a bench trial unilaterally. See People v. Davis, 400 N.E.2d 313, 316 (N.Y. 1979) ("It can no longer be disputed that defendant had a constitutional right to waive trial by jury . . . ."); People ex rel. Rohrlich v. Follette, 229 N.E.2d 419, 421 (N.Y. 1967) (holding that the judge's discretion to deny a defendant's request for a bench trial can only be exercised upon grounds qualifying as compelling which do not include the judge's desire to entrust fact-finding to a jury); People v. Duchin, 190 N.E.2d 17, 17-18 (N.Y. 1963) (holding that N.Y. CONST. art. I, § 2 "is designed for the benefit of the defendant. When, choosing to be tried by a judge alone, he requests a waiver, he is entitled to it as a matter of right once it appears to the satisfaction of the judge that . . . the waiver is tendered in good faith and is not a stratagem to procure an otherwise impermissible procedural advantage").
38. See People v. Gersch, 553 N.E.2d 281, 283 (Ill. 1990) (reaffirming the Joyce principle, under which a criminal defendant has a constitutional right to a bench trial, and holding that it was a violation of the defendant's constitutional rights to give the State the right to demand jury trial over the defendant's waiver); People ex rel. Daley v. Joyce, 533 N.E.2d 873, 879 (Ill. 1988) (holding that a criminal defendant has a constitutional right to choose between a jury and a bench trial and invalidating a statute that conditioned the substitution of a jury trial by a bench trial upon the prosecution's consent); People v. Reed, 319 N.E.2d 557, 558-59 (Ill. App. Ct. 1974) (holding that the rule laid down in Singer v. United States, 380 U.S. 24 (1965), does not apply in Illinois and that the trial judge erred in not accepting the defendant's waiver of jury trial over the State's objection to that waiver).
39. See State v. Henderson, 287 N.W.2d 583, 586 (Iowa 1980) (interpreting IOWA R. CRIM. P. 16(1) as conferring upon criminal defendants an absolute right to waive jury and be tried by a judge).
40. Namely Connecticut, Louisiana, Maryland, Montana, Nebraska, New Hampshire, and Ohio. See CONN. GEN. STAT. ANN. § 54-82b (West 2001) (allowing defendants to unilaterally switch from a jury to a bench trial); CONN. SUPER. CT. R. CRIM. P. 39-19(5) (providing that the judicial authority shall not accept a defendant's plea of guilty or nolo contendere without first determining that the defendant fully under-stands "[t]he fact that he or she . . . has the right to be tried by a jury or a judge"); LA. CODE CRIM. PROC. ANN. art. 780(A) (1998) ("A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge."); MD. R. CRIM. CAUSES 4-246 (allowing defendants "knowingly and voluntarily" to opt for a bench trial instead of a jury trial); Thomas v. State, 598 A.2d 789, 790 (Md. Ct. Spec. App. 1991) (stating that criminal defendants in Maryland have "a long standing common law right to choose between a trial by jury and a trial by the court"); State ex rel. Nelson v. Mont. Ninth Judicial Dist. Court, 863 P.2d 1027, 1034 (Mont. 1993) (holding that a criminal defendant can opt for a bench trial unilaterally under Montana law); State v. Carpenter, 150 N.W.2d 129, 131 (Neb. 1967) (interpreting the right to a jury trial under Nebraska Constitution as "personal to the defendant" with the consequence that "the state is without power to require [a jury trial] if the defendant wishes to waive it"); N.H. REV. STAT. ANN. § 606:7 (LexisNexis 2003) (allowing defendants to choose a bench trial unilaterally before jury is impaneled, but conditioning the switch to a bench trial in a multi-defendant case upon each defendant's consent); OHIO R. CRIM. P. 23(A) ("In serious offense cases the defendant before commencement of the trial may knowingly, intelligently and voluntarily waive in writing his right to trial by jury. Such waiver may also be made during trial with the approval of the court and the consent of the prosecuting attorney."); State v. Jells, 559 N.E.2d 464, 468 (Ohio 1990) (holding that "[t]here is no requirement in Ohio for the trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial" and that "[t]he Criminal Rules . . . are satisfied by a written waiver, signed by the defendant, filed with the court, and made in open court, after arraignment and opportunity to consult with counsel").
41. Under the Oregon Constitution, defendants in noncapital cases can opt for a bench trial, but this right is conditioned on the judge's approval. The prosecution cannot veto the defendant's written request for a bench trial. See State v. Baker, 976 P.2d 1132, 1137 (Or. 1999). Minnesota has a similar rule. See Gaulke v. State, 184 N.W.2d 599, 602 (Minn. 1971) (advising in dictum that a defendant's request for a bench trial requires approval of the trial court, but not the prosecution's consent).
42. The rule against double jeopardy and the grand jury mechanism do not merely ameliorate the problem focused upon by this Article. They have other functions as well. See LAFAVE ET AL., supra note 18, §§ 15.1(a), 25.1(b) (rationalizing the rule against double jeopardy and the grand jury review of criminal charges as tackling the threat of governmental oppression). We therefore do not extend our recommendations to these two pillars of the criminal justice system.
43. See, e.g., Richard Klein, Due Process Denied: Judicial Coercion in the Plea Bargaining Process, 32 HOFSTRA L. REV. 1349, 1349-50 (2004) (reporting that judges commonly "up the sentence" when the defendant chooses to go to trial and is ultimately found guilty).
44. See infra Table 1.
45. See infra Table 1.
46. See infra notes 186-218 and accompanying text.
47. See infra notes 186-218 and accompanying text.
48. See Daniel Ellsberg, Risk, Ambiguity, and the Savage Axioms, 75 Q.J. ECON. 643, 657-69 (1961).
49. Id.
50. See FED. R. CRIM. P. 23(a) (allowing the defendant to waive his or her right to a jury trial).
51. See Singer v. United States, 380 U.S. 24, 31 (1965) (explaining that the right to a jury trial "was clearly intended to protect the accused from oppression by the Government").
52. See JONAKAIT, supra note 9, at 18-40.
53. See, e.g., NANCY S. MARDER, THE JURY PROCESS 35-36 (2005) (describing the jury as a buffer that stands between the accused and all state agents, including prosecutors and judges);
54. Patrick E. Higginbotham, Juries and the Death Penalty, 41 CASE W. RES. L. REV. 1047, 1047-48 (1991) (arguing that the jury's function as a buffer between the accused and the state is eroded by the sentencing rules that allow judges to make factual findings).
55. PATRICK DEVLIN, TRIAL BY JURY 164 (1956).
56. See Tyler v. Cain, 533 U.S. 656, 665 (2001) (describing "the right to have the jury make the determination of guilt beyond a reasonable doubt" as "a bedrock element of procedural fairness").
57. See JONAKAIT, supra note 9, at 64-74 (describing jurors as enforcers of community values); Adrian A.S. Zuckerman, Law, Fact or Justice?, 66 B.U. L. REV. 487, 494-508 (1986) (rationalizing the jury system as adjudication on the merits through invocation of public values and sense of security).
58. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 258-64 (Harvey C. Mansfield & Delba Winthrop eds., Univ. Chi. Press 2000) (1835).
59. See JEROME FRANK, LAW AND THE MODERN MIND 172, 173 (1930) (famously observing that "[a] better instrument than the usual jury trial could scarcely be imagined for achieving uncertainty, capriciousness, lack of uniformity, disregard of former decisions - utter unpredictability" and that "only a very foolish lawyer will dare guess the outcome of a jury trial");
60. see also JEFFREY ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY 145 (1994) ("[E]ven generalizations about groups are of limited use in the jury context, because the behavior of jurors, as well as the local community from which they are drawn, is so specific to the particular case on trial.");
61. Heather K. Gerken, Second-Order Diversity, 118 HARV. L. REV. 1099, 1165 (2005) (observing that jury verdicts are indeterminate and can only be predicted within a general "evidentiary range").
62. See infra pp. 1537-38.
63. See supra note 39 and accompanying text; infra notes 62-70 and accompanying text.
64. See infra Part II.
65. See DEVLIN, supra note 45, at 26 (describing the random selection of prospective jurors from the pool of citizens eligible for jury service); MARDER, supra note 44, at 50-67 (describing the existing venire summoning methods that randomize the selection of jurors).
66. See Taylor v. Louisiana, 419 U.S. 522, 530 (1975) ("[T]he fair-cross-section requirement [is] fundamental to the jury trial guaranteed by the Sixth Amendment . . . ."); JONAKAIT, supra note 9, at 114-27 (describing the jury as the most diverse of democratic bodies).
67. See Gerken, supra note 49, at 1165 ("Jury verdicts [especially in the criminal context] represent an extreme example of the discrete, individual costs that can arise from variation . . . . Some of these costs are reduced by the process of judicial review; because the case made by a prosecutor needs to be within a certain evidentiary range to survive appellate scrutiny, juries simply choose who among those 'within the range' are punished"). For purposes of our theory, we only need to establish that jury verdicts are considerably less predictable than decisions made by judges.
68. See JONAKAIT, supra note 9, at 128-35.
69. See LAFAVE ET AL., supra note 18, § 22.3(d). The prosecution, however, is not allowed to strike prospective jurors on racial grounds. See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (holding that racial discrimination injury selection offends the Equal Protection Clause); see also Miller-El v. Dretke, 125 S. Ct. 2317, 2331-40 (2005) (finding the state's jury selection techniques discriminatory); Johnson v. California, 125 S. Ct. 2410, 2416-19 (2005) (clarifying the criteria for ascertaining prosecutors' racial motivations hiding behind peremptory strikes).
70. See Swain v. Alabama, 380 U.S. 202, 218-20 (1965) (stating that peremptory challenges are extensively used due to the parties' conjectures about jurors' partiality).
71. Id. at 219 (stating that one of the functions of peremptory challenges is "to eliminate extremes of partiality on both sides").
72. When evidence supporting the accusations is plainly insufficient, the prosecution usually drops the case. See LAFAVE ET AL., supra note 18, § 13.1(b) ("As a practical matter, the prosecutor is likely to require admissible evidence showing a high probability of guilt, that is, sufficient evidence to justify confidence in obtaining a conviction."). Alternatively, the judge delivers a directed acquittal. Id. § 24.6(b).
73. See Bibas, supra note 3, at 2497 n.134 (explaining the high rate of guilty pleas by the fact that defense attorneys convince their clients to plead guilty - with and without plea bargaining - in the face of overwhelming evidence).
74. See Ellsberg, supra note 39. In this classic article, Ellsberg challenged the basic idea that probabilities always exist by offering the following betting experiment. Id. at 650-53. Urn I contains 100 balls, red and black, of unknown composition. Urn II contains fifty red and fifty black balls. Betting on Red-I means that one ball will be drawn at random from Urn I and that you will win $100, if the ball is red, and $0 if not. Other available bets, Black-I, Red-II, and Black-II are defined in the same way. Which of the following bets would you prefer: (1) Red-I or Black-I; (2) Red-II or Black-II; (3) Red-I or Red-II; or (4) Black-I or Black-II? Ellsberg predicted that most people would be indifferent between Red-I and Black-I, as well as between Red-II and Black-II. Yet, people generally prefer Red-II to Red-I and Black-II to Black-I. Betting on balls contained in Urn II is a rational preference because such bets are more informative than their Urn-I alternatives. These predictions have been verified in many experiments conducted by empirical economists and cognitive psychologists. See Colin Camerer & Martin Weber, Recent Developments in Modeling Preferences: Uncertainty and Ambiguity, 5 J. RISK & UNCERTAINTY 325 (1992) (surveying experiments that verify the existence of ambiguity aversion and a number of theories addressing this phenomenon);
75. Craig R. Fox & Amos Tversky, Ambiguity Aversion and Comparative Ignorance, 110 Q.J. ECON. 585, 588-99 (1995) (providing empirical affirmation to the ambiguity-aversion phenomenon in settings featuring both determinable and indeterminable probabilities);
76. Gideon Keren & Léonie E.M. Gerritsen, On the Robustness and Possible Accounts of Ambiguity Aversion, 103 ACTA PSYCHOLOGICA 149, 153-57 (1999) (demonstrating that ambiguity aversion holds for both gains and losses);
77. Paul Slovic & Amos Tversky, Who Accepts Savage's Axiom?, 19 BEHAV. SCI. 368 (1974) (demonstrating that ambiguity aversion is systematic and does not originate from individuals' misunderstandings of the subject);
78. W. Kip Viscusi & Harrell Chesson, Hopes and Fears: The Conflicting Effects of Risk Ambiguity, 47 THEORY & DECISION 153, 167-68 (1999) (demonstrating that individuals are ambiguity averse when facing relatively small probabilities of loss and ambiguity seeking when the probability of loss is high; the average crossover probability is demonstrated to be about 0.5).
79. See Jamil Baz et al., Risk Perception in the Short Run and in the Long Run, 10 MARKETING LETTERS 267, 268-69 (1999); Camerer & Weber, supra note 62; Ellsberg, supra note 39, at 656-60 (observing that ambiguity aversion is a behavioral phenomenon that involves "the operation of definite normative criteria" and introducing different criteria to account for probabilistic ambiguity);
80. Barbara E. Kahn & Rakesh K. Sarin, Modeling Ambiguity in Decisions Under Uncertainty, 15 J. CONSUMER RES. 265, 267-68 (1988) (explaining the concept of second-order probability and linking it to ambiguity aversion).
81. See FRANK H. KNIGHT, RISK, UNCERTAINTY AND PROFIT 227 (1921) ("A man may act upon an estimate of the chance that his estimate of the chance of an event is a correct estimate.").
82. For more sophisticated models see Itzhak Gilboa & David Schmeidler, Maxmin Expected Utility with Non-Unique Prior, 18 J. MATHEMATICAL ECON. 141 (1989) (perceiving a nonprobabilistic event as a situation in which the decisionmaker identifies several possible probabilities as applicable to the event and then behaves in accordance with the worst-case scenario: in choosing between the probabilities, the decisionmaker ascribes the lowest possible probability to a favorable outcome and the highest possible probability to an unfavorable outcome);
83. Edi Karni & David Schmeidler, Utility Theory with Uncertainty, in 4 HANDBOOK OF MATHEMATICAL ECONOMICS 1763 (Werner Hildenbrand & Hugo Sonnenschein eds., 1991) (surveying formal models that analyze ambiguity aversion in nonprobabilistic events);
84. David Schmeidler, Subjective Probability and Expected Utility Without Additivity, 57 ECONOMETRICA 571 (1989) (modeling nonprobabilistic events by nonadditive probabilities, also known as Choquet expected-utility);
85. Uzi Segal, The Ellsberg Paradox and Risk Aversion: An Anticipated Utility Approach, 28 INT'L ECON. REV. 175, 177-83 (1987) (modeling uncertainty as a probability distribution over possible values of the true probability).
86. Formally, the value of the gamble "x if event A happens and y if event B happens," where B is not-A, is given by u(x)π(A) + u(y) [1 - π(A)], when x < y; and by u(y)π(B) + u(x)[1 - π(B)], when y < x (u and π denote "utility" and "probability," respectively). When π(A) + π(B) = 1 - that is, when the relevant probabilities of mutually exclusive events are additive - the ordinary expected utility analysis holds ground. Ambiguity aversion is observable when π(A) + π(B) > 1 - that is, when the probabilities become nonadditive. Assume that in Ellsberg's Two-Urn example π(Red-I) and π(Black-I) both equal 0.6, while π(Red-II) and π(Black-II) both equal 0.5. Also assume, for the sake of convenience, that u(0) = 0 and u(100) = 100. The value of each of the Urn-I gambles, Red-I and Black-I, consequently equals [1 - 0.6]·100 = 40, while the value of each of the Urn-II gambles, Red-II and Black-II, is [1 - 0.5] x 100 = 50.
87. See Ellsberg, supra note 39, at 663. The different attitudes toward this probabilistic indeterminacy (or ambiguity) have nothing to do with risk aversion that represents aversion to fluctuation in the outcomes. In our model, jury and bench trials carry the same set of possible outcomes: an acquittal or, alternatively, a conviction, which we assume for simplicity to carry the same penalty, regardless of the chosen trial mode. Our model also assumes that judges and juries do not differ in their conviction rates in adjudicating similar cases. A simple expected-payoff model that evaluates uncertain prospects only by their outcomes and probabilities (regardless of the probabilities' epistemic credentials) is therefore unable to differentiate between jury and bench trials. To properly differentiate between the two trial environments, one needs to distinguish between the probabilities' epistemic credentials. Specifically, one needs to acknowledge that some probabilities are ambiguous and some are not and that people rationally fear probabilistic ambiguity. See supra note 39 and accompanying text; infra notes 97-100, 108-12 and accompanying text.
88. Legal advice cannot substantially reduce this indeterminacy. We assume throughout this Article that defendants are represented by skillful attorneys. These attorneys, however, can only predict jurors' verdicts in probabilistic terms that are highly ambiguous.
89. Ellsberg, supra note 39, at 657.
90. As powerfully explained by Ellsberg, "But having exploited knowledge, guess, rumor, assumption, advice, to arrive at a final judgment that one event is more likely than another or that they are equally likely, one can still stand back from this process and ask: 'How much, in the end, is all this worth?"' Id. at 659-60.
91. This assumption derives from the statistical "principle of indifference." See COHEN, supra note 1, at 43-47.
92. Under this assumption, David's 50% probability of being convicted is calculated as follows: (50%·70%) + (50%·30%).
93. See generally JONAKAIT, supra note 9, at 128-38 (describing the voir dire and an attorney's right to challenge for cause a potential juror who may not be impartial); SAUL M. KASSIN & LAWRENCE S. WRIGHTSMAN, THE AMERICAN JURY ON TRIAL: PSYCHOLOGICAL PERSPECTIVES 26 (1988) (noting that jurors are not tabula rasa in a pure sense).
94. See, e.g., HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 3 (1966) (observing that the American legal system orders jurors "to carry out deliberations in secret and to report out their final judgment without giving reasons for it"); KASSIN & WRIGHTSMAN, supra note 73, at 9 (noting that jurors need not explain their decisions and sometimes are not permitted to discuss improprieties that occur during deliberation).
95. Cf. Harry Kalven, Jr., The Jury, the Law, and the Personal Injury Damage Award, 19 OHIO ST. L.J. 158, 178 (1958) ("The judge and jury are two remarkably different institutions for reaching the same objective - fair, impersonal adjudication of controversies. The judge represents tradition, discipline, professional competence and repeated experience with the matter . . . . But the endless fascination of the jury is to see whether something quite different - the layman amateur drawn from a wide public . . . - can somehow work as well or perhaps better.").
96. See George Fisher, The Jury's Rise as Lie Detector, 107 YALE L.J. 575, 705 (1997) (noticing that the jury's "private and inarticulate decisionmaking protected it from . . . embarrassing public failures" and that "whether by tradition or conscious design, the jury's verdict has been largely impenetrable. There never has been a mechanism by which the defendant or anyone outside the system could command the jury to reveal its decisionmaking processes. The jury's secrecy is an aid to legitimacy, for the privacy of the jury box shrouds the shortcomings of its methods.").
97. Once again, we set high-profile cases aside. See supra note 2.
98. See Kalven, supra note 75, at 178.
99. See Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 648-58 (1995).
100. See RONALD DWORKIN, LAW'S EMPIRE 225-75 (1986).
101. See Khanna, supra note 12, at 398 n.219.
102. See SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS, supra note 12, at 445 tbl.5.43.
103. Dividing the jury-trial and the bench-trial caseloads between different judges does not remove the judges' incentive to clear dockets. In the absence of a plea bargain, judges in charge of jury trials would still have an incentive to elicit bench-trial stipulations from prosecutors and defendants. The consequent increase in the number of bench trials would bring about a reassignment of the cases.
104. Judges have other strong incentives for not exercising a pro-defendant bias in their decisions. See infra notes 262-63 and accompanying text.
105. See supra notes 38, 61-69 and accompanying text.
106. See supra notes 38, 61-69 and accompanying text.
107. See supra notes 38, 61-69 and accompanying text.
108. See supra notes 38, 61-69 and accompanying text; see also Terrence Chorvat et al., Law and Neuroeconomics, 13 SUP. CT. ECON. REV. 35, 51-52 (2005) (pointing out that neurological evidence gives some explanation as to why people tend to be ambiguity averse).
109. See supra notes 38, 63-64.
110. See KNIGHT, supra note 64, at 19-20, 197-232 (distinguishing between randomness with knowable probabilities, conceptualized as "risk," and randomness with unknowable probabilities, conceptualized as " uncertainty").
111. See, e.g., JAMES LOGUE, PROJECTIVE PROBABILITY 78-95 (1995) (articulating the concepts of "weight" and "resiliency," as applied to probabilities);
112. Neil B. Cohen, Confidence in Probability: Burdens of Persuasion in a World of Imperfect Knowledge, 60 N.Y.U. L. REV. 385, 397-400 (1985) (describing how a factfinder's confidence in the true value of a given probability affects whether the burden of persuasion is satisfied by a preponderance of the evidence).
113. See ROBERT NOZICK, INVARIANCES: THE STRUCTURE OF THE OBJECTIVE WORLD 75-90, 99 (2001).
114. See Peter Gärdenfors & Nils-Eric Sahlin, Unreliable Probabilities, Risk Taking, and Decision Making, 53 SYNTHESE 361, 361-63 (1982).
115. See supra note 71 and accompanying text.
116. JOHN MAYNARD KEYNES, A TREATISE ON PROBABILITY 42 (1929). For a contemporary philosophical analysis of the indifference principle, see COHEN, supra note 1, at 43-47.
117. See Gärdenfors & Sahlin, supra note 93, at 364-73.
118. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 10-11 (6th ed. 2003) (explaining neutrality and aversion towards risk).
119. Id.
120. Id. at 11.
121. Formally, a person is risk averse when up(x) < u(px). In this formulation, u represents the person's utility; x is the value of an asset that the person may obtain; and p is the person's probability of obtaining that asset. This formulation portrays a person who prefers px dollars in her pocket over the prospect of obtaining x dollars, to which probability p attaches. A person is risk neutral but ambiguity averse when up(x) = u(px), but only if p is unambiguous. If p is ambiguous, the person substitutes it with a lower probability, say q, and the rest is the same as before: uq(x) = u(qx).
122. See supra notes 14-15 and accompanying text.
123. See FED. R. CRIM. P. 23(a)(2)-(3) (conditioning the defendant's request for a switch to a nonjury trial on the government's consent and the court's approval).
124. See ALEX STEIN, FOUNDATIONS OF EVIDENCE LAW 172-78 (2005) (introducing the "equal best" standard, under which a legal system can justifiably convict a person only if it did its best in protecting that person from the risk of erroneous conviction and if it does not provide better protection to other individuals);
125. see also RONALD DWORKIN, A MATTER OF PRINCIPLE 72, 79-88 (1985) (explaining that a wrongful conviction of a person that is deliberate, rather than merely accidental, is unjust in that it inflicts on the person a distinct moral harm; this harm is the person's discriminatory treatment that violates the state's fundamental obligation to treat citizens with equal concern and respect).
126. See A. Mitchell Polinsky & Steven Shavell, The Economic Theory of Public Enforcement of Law, 38 J. ECON. LITERATURE 45, 60-62 (2000)
127. (drawing on Ivan P.L. Png, Optimal Subsidies and Damages in the Presence of Judicial Error, 6 INT'L REV. L. & ECON. 101 (1986) (demonstrating formally that erroneous convictions dilute deterrence by eroding the difference between the penalties expected from violating the law and from not violating it)).
128. This disutility amount represents the person's losses of freedom, money, and reputation brought about by his conviction and punishment.
129. The person calculates this amount by multiplying his probability of being apprehended and convicted as a thief by the applicable punishments (both legal and social). Subsequently, he reduces this negative sum (say, -1000) by the stolen amount (say, 550).
130. We borrow this example from STEIN, supra note 103, at 106 n.85.
131. See supra notes 84-85 and accompanying text.
132. See STEIN, supra note 103, at 172-78 (discussing the beyond-all- reasonable-doubt requirement, its constitutional origin, and its minimizing effect on the risk of erroneous conviction).
133. Id. at 183-208 (explaining the pro-defendant system of admissibility rules).
134. See Bruton v. United States, 391 U.S. 123, 137 (1968) (holding that Constitution requires courts to shield the defendant from any substantial spillover effect that inadmissible evidence might produce).
135. We assume that there are good reasons for not convicting a guilty defendant when the evidence does not warrant it.
136. See supra note 17.
137. See supra notes 20-23 and accompanying text.
138. See LAFAVE ET AL., supra note 18, § 25.1(a)-(c).
139. For the definition of the "same offence," see id. § 25.1(f). The treatise explains that, subject to separate-sovereign prosecutions, two offenses classify as similar for double jeopardy purposes when their elements overlap each other completely. Id.
140. See Crist v. Bretz, 437 U.S. 28, 38 (1978) ("The federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy.").
141. See Willhauck v. Flanagan, 448 U.S. 1323, 1325-26 (1980); Crist, 437 U.S. at 37 n.15; Serfass v. United States, 420 U.S. 377, 388 (1975).
142. See LAFAVE ET AL., supra note 18, § 25.1(g)(4). The mistrial needs to be justified as a "manifest necessity" or voluntarily consented to by the defendant. Id. § 25.2(a)-(c).
143. See Lee v. United States, 432 U.S. 23, 30-31 (1977) (noting that the critical inquiry is whether the order entered ends all prosecution of the defendant for the charge); LAFAVE ET AL., supra note 18, § 25.2(f) (stating that Lee indicates that dismissal is equivalent to mistrial in some circumstances).
144. See LAFAVE ET AL., supra note 18, § 25.3(b).
145. See Sanabria v. United States, 437 U.S. 54, 63-78 (1978); see also LAFAVE ET AL., supra note 18, § 25.3(c) (discussing Sanabria).
146. See Smith v. Massachusetts, 125 S. Ct. 1129, 1135-38 (2005).
147. See LAFAVE ET AL., supra note 18, § 25.3(a).
148. See Stith, supra note 19, at 8-14 (describing the asymmetric system of criminal appeals under the double-jeopardy prohibition).
149. Id. at 19-24.
150. Id. at 17.
151. These reasons virtually guarantee judges' alignment with the institutional criteria for decisionmaking. See supra notes 78-80 and accompanying text.
152. See POSNER, supra note 97, at 543 (noting that judges are prestige maximizers and are sensitive to being reversed by a higher court); Richard A. Posner, Judicial Behavior and Performance: An Economic Approach, 32 FLA. ST. U. L. REV. 1259, 1271 (2005) (mentioning reversal rate amongst indicators of judicial promotion-affecting performance and stating that "[j]udges also do not like to be reversed, even though a reversal has no tangible effect on a judge's career if he is unlikely to be promoted to the court of appeals in any event" (footnote omitted));
153. see also Emery G. Lee III, Horizontal Stare Decisis on the U.S. Court of Appeals for the Sixth Circuit, 92 KY. L.J. 767, 771 (2004) (noting that judges "may fear reversal by a higher court and may harbor ambitions for higher office").
154. To avoid reputational damage, the judge needs to remain unbiased in resolving issues settled by bright-line rules. This strategy will keep the judge's decisions within the bounds of societal and professional acceptability.
155. See Stith, supra note 19, at 18-24, 36-42 (describing and analyzing this tendency along with its partial mitigation by the judges' incentive to preserve some legal issues for appellate review).
156. See id. at 20-21 (describing and analyzing the pro-defendant bias in the trial judges' sampling of precedents).
157. At common law and under the Due Process Clause of the Fourteenth Amendment, the defendant's confession is only admissible when made "voluntarily." See LAFAVE ET AL., supra note 18, § 6.2(b)-(c).
158. See id. § 6.2(c) (stating and illustrating the principle requiring judges to examine the "totality of circumstances" surrounding each confession in determining whether the defendant made it "voluntarily") .
159. See Stith, supra note 19, at 9-12 (explaining how overestimating or underestimating the voluntariness of a confession results in a pro-government or pro-defendant error).
160. See FED. R. EVID. 801(a)(2) (defining "statement" that may fall under the definition of "hearsay" as including "nonverbal conduct of a person, if it is intended by the person as an assertion").
161. See Stith, supra note 19, at 50. Vikramaditya Khanna argues that the asymmetric appeal system actually induces the prosecution to prosecute the defendant more zealously by expending on the trial more efforts and other resources than it would expend if it could appeal against acquittals and dismissals (after jeopardy had attached). Khanna, supra note 12, at 374. We do not see, however, how the availability of appeal changes the prosecution's incentive to do its very best at the trial. The prosecution's underperformance at the trial would reduce its chances to succeed on appeal. An appellant can only complain about the judge's errors, not about the flaws in his or her own trial performance.
162. Appellate courts reverse such rulings only upon finding an "abuse of discretion" by the trial judge, typically defined as "'an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.'" United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir. 1991) (quoting United States v. Cardenas, 864 F.2d 1528, 1530 (10th Cir. 1989)); see also United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004).
163. See FED. R. EVID. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."); Hernandez-Herrera, 952 F.2d at 343 (applying a deferential standard to the question of authentication of evidence); CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE 174 (3d ed. 2003) ("Trial judges are given broad discretion in applying FRE 403. It is generally held that their rulings are entitled to 'substantial deference' on appeal and are reversed only for 'clear abuse' of discretion."); see also FED. R. EVID. 609(a) ("[E]vidence that an accused has been convicted of . . . a crime shall be admitted [to impeach him as a witness] if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused . . . ."); United States v. Martinez-Martinez, 369 F.3d 1076, 1088 (9th Cir. 2004) ("Evidentiary rulings under Fed.R.Evid. 609 are reviewed under the abuse of discretion standard."); United States v. Jimenez, 214 F.3d 1095, 1097-98 (9th Cir. 2000) ("The district court's evidentiary rulings under Rule 609(a) are reviewed for an abuse of discretion.").
164. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-95 (1993) (laying down a set of reliability-based criteria for determining the admissibility of scientific expert testimony); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (extending Daubert's gatekeeping criteria to all kinds of expert testimony). The standard for reviewing Daubert rulings on appeal is abuse of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39 (1997).
165. See POSNER, supra note 97, at 543.
166. As observed by Kate Stith, "The dynamic effect of the one-way pressure on appellate courts also tends to move appellate law inexorably in a pro-defendant direction." Stith, supra note 19, at 26-27.
167. See id. at 26.
168. The asymmetric-ambiguity-aversion problem can be mitigated by any indiscriminate reduction of the conviction rate. The rule against double jeopardy, however, is the only legal mechanism that has this effect. All other rules of criminal procedure and evidence separate between the guilty and the innocent. See, e.g., Daniel J. Seidmann & Alex Stein, The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 HARV. L. REV. 430, 467-70 (2000) (demonstrating that the right to silence induces guilty criminals not to pool with innocents by making false exculpatory statements).
169. We assume that the grand jury adequately performs its role. This normative assumption is supported by empirical facts. See United States v. Cotton, 535 U.S. 625, 634 (2002) ("Respondents emphasize that the Fifth Amendment grand jury right serves a vital function in providing for a body of citizens that acts as a check on prosecutorial power. No doubt that is true."); LAFAVE ET AL., supra note 18, § 15.3(b) (demonstrating that grand jurors generally perform their screening role). Another view maintains that grand jurors rubberstamp the prosecution's indictment requests. See In re Grand Jury Subpoena of Stewart, 545 N.Y.S.2d 974, 977 n.1 (Sup. Ct. 1989) ("Many lawyers and judges have expressed skepticism concerning the power of the Grand Jury. This skepticism was best summarized by the Chief Judge of this state in 1985 when he publicly stated that a Grand Jury would indict a 'ham sandwich.'"); Do We Need Grand Juries?, N.Y. TIMES, Feb. 18, 1985, at A16 (reporting former New York Chief Judge Wachtler's call for an abolition of grand juries because "[t]hey would 'indict a ham sandwich' if the district attorney asked nicely");
170. see also Niki Kuckes, The Useful, Dangerous Fiction of Grand Jury Independence, 41 AM. CRIM. L. REV. 1, 33-55, 60-62 (2004) (arguing that grand-jury independence is a fiction that enhances investigative powers, shields the exercise of prosecutorial discretion from judicial oversight, streamlines pretrial procedures, and distorts the public debate about the protective screening of prosecutions).
171. FED. R. CRIM. P. 6(a)(1).
172. LAFAVE ET AL., supra note 18, § 8.1(a).
173. FED. R. CRIM. P. 6(f).
174. See FED. R. CRIM. P. 6(f).
175. See LAFAVE ET AL., supra note 18, § 8.1(a) (stating the grand jury's prosecution-screening role).
176. Id.
177. Id. §§ 8.3-.4 (specifying the grand jury's investigative powers); see also id. § 8.4(b), at 411 (noting that in most jurisdictions the grand jury has the "authority to undertake an investigation on its own initiative notwithstanding the prosecutor's disagreement").
178. Id. § 8.3(a)-(c).
179. Id. § 8.4(a), at 409 ("Today, in all but a handful of jurisdictions, the grand jury array is drawn from the same constituency, and selected in the same manner, as the array for the petit jury.").
180. Id.
181. FED. R. CRIM. P. 6(c).
182. See United States v. Bullock, 448 F.2d 728, 729 (5th Cir. 1971) ("Under the rationale of Dennis v. United States, 384 U.S. 855 (1966), . . . the defendant should have been accorded the right to inspect the required record or, if such record was not properly maintained, as required by the rule, to have access to some method of substituted proof to ascertain that the substantive provisions of Fed.R.Crim.P. 6(f) were met.").
183. Id.; see also United States v. Bally Mfg. Corp., 345 F. Supp. 410, 421 (E.D. La. 1972) (reaffirming the Bullock procedure of examining the grand jurors' "concurrence slip" by the defendant (internal quotation marks omitted)).
184. United States v. Benigno, No. 76 Cr. 0603, 1976 WL 852, at *7 (S.D.N.Y. Oct. 6, 1976); see also United States v. Marshall, 526 F.2d 1349, 1359-60 (9th Cir. 1976) (upholding the government's agreement to allow the defendant to inspect "the grand jury ballot and the return indicating the number of jurors concurring in the indictment" as aligning with Bullock); State v. CIBA-GEIGY Corp., 536 A.2d 1299, 1301 (N.J. Super. Ct. App. Div. 1988) (noting that defendants were allowed to inspect the voting and attendance records of the grand jury to verify the validity of the indictment).
185. See FED. R. CRIM. P. 6(e).
186. See LAFAVE ET AL., supra note 18, § 8.5(a) (underscoring the centrality of the secrecy requirement in grand jury proceedings).
187. See FED. R. CRIM. P. 6(e)(2)-(3) (stating the secrecy requirement and its exceptions); LAFAVE ET AL., supra note 18, § 8.5 (analyzing the secrecy requirement and its exceptions).
188. See United States v. Deffenbaugh Indus., Inc., 957 F.2d 749, 757 (10th Cir. 1992) ("If Bullock and the other authorities citing that opinion stand for the proposition that defendants are always entitled to view the report of the foreman of the grand jury specifying the number of votes for the indictment, we respectfully disagree. We do believe defendants are entitled to the assurance of the district judge that the judge has inspected the report and it contains twelve or more votes to indict. But anything more, except upon a showing of particularized need, would negate Rule 6(c)'s requirement of secrecy absent an 'order of the court.'"); see also United States v. Missler, 299 F. Supp. 1268 (D. Md. 1969), aff'd, 427 F.2d 1369 (4th Cir. 1970). In Missler, the grand jury's voting record, documenting the fact that all twenty-three jurors concurred in the indictment, was disclosed to the defendant. Id. at 1270. The district court noted, however, that "[i]f the point is raised in any future case, the court will advise the defendant only that 12 or more jurors concurred in finding the indictment in order to preserve the secrecy provided for by Rule 6." Id. at 1270 n.3.
189. See United States v. Navarro-Vargas, 408 F.3d 1184, 1186-87, 1196-98 (9th Cir. 2005) (stating that "probable cause" is the generally accepted standard for the grand jury's indictment decisions).
190. See LAFAVE ET AL., supra note 18, § 15.2(f), at 742 (explaining that, under the "'prima facie evidence standard,'" grand jurors are instructed to indict the defendant "'when all the evidence taken together, if unexplained or uncontradicted, would warrant [his] conviction'").
191. Id.
192. See supra note 22.
193. Our premise that jury trials are unpredictable, relative to bench trials, gains support from scholarly writings. See supra notes 49, 55, 74, 76. The empirical objection to our theory therefore runs against these writings as well.
194. See DWORKIN, supra note 80, at 36.
195. See FRANK, supra note 49, at 172.
196. Under the standard economic definition, revealed preference is a product-induced change in consumer behavior evidenced by the consumers' willingness (or unwillingness) to purchase the product. See KELVIN LANCASTER, MODERN ECONOMICS: MICROECONOMICS 121-22 (1973).
197. This defendant also may rationally hope that he would be sentenced with some leniency, if convicted, because he saved the judge's time - a factor that the judge would count in his favor. See supra note 34 and accompanying text; see also Bibas, supra note 3, at 2486 ("The Federal Sentencing Guidelines significantly discount the sentences of defendants who accept responsibility in a timely manner, typically by pleading guilty.").
198. See State v. Burks, 674 N.W.2d 640, 642 (Wis. Ct. App. 2003).
199. See Viscusi & Chesson, supra note 62, at 167 (demonstrating that people generally seek ambiguity when confronted with a high probability of loss).
200. See supra notes 14-15, 26-27 and accompanying text.
201. See supra notes 14-15, 26-27 and accompanying text.
202. See supra note 12 and accompanying text.
203. See FED. R. CRIM. P. 11(b)(1)(C) (requiring the court to advise the defendant entering a guilty plea of his right to a jury trial); Boykin v. Alabama, 395 U.S. 238, 243 (1969).
204. See Boykin, 395 U.S. at 242-44. But see LAFAVE ET AL., supra note 18, § 21.4(e) (explaining the Boykin decision as unique and stating the prevalent approach that favors an ad hoc inquiry into whether the defendant's plea was voluntary and intelligent).
205. See Bibas, supra note 3, at 2475, 2480 (underscoring this incentive).
206. Id. at 2480.
207. This rate was reported for years 1999 and 2002. In 2000 and 2001, it was 3.3% and 2.8%, respectively. In 1998, it was 3.7%. See NAT'L CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS, 1998, at 72 (Brian J. Ostram & Neal B. Kauder, eds., 1999) [hereinafter STATE COURTS 1998]; NAT'L CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS, 1999-2000, at 68 (Brian J. Ostram et al. eds., 2001) [hereinafter STATE COURTS 2000]; NAT'L CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS, 2001, at 63 (Brian J. Ostram et al. eds., 2001) [hereinafter STATE COURTS 2001]; NAT'L CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS, 2002, at 61 (Brian J. Ostram et al. eds., 2003) [hereinafter STATE COURTS 2002]; NAT'L CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS, 2003, at 44 (Brian J. Ostram et al. eds., 2004) [hereinafter STATE COURTS 2003].
208. This datum reflects the five year period from 1998 to 2002. See sources cited supra note 182.
209. See sources cited supra note 182.
210. See sources cited supra note 182.
211. See sources cited supra note 182.
212. STATE COURTS 1998, supra note 182, at 72.
213. Id.
214. Id.
215. Id.
216. STATE COURTS 2000, supra note 182, at 68.
217. Id.
218. Id.
219. Id.
220. Id.
221. Id.
222. STATE COURTS 2001, supra note 182, at 63.
223. Id.
224. STATE COURTS 2000, supra note 182, at 68.
225. STATE COURTS 2001, supra note 182, at 63.
226. Id.
227. Id.
228. Id.
229. STATE COURTS 2002, supra note 182, at 61.
230. Id.
231. Id.
232. STATE COURTS 2003, supra note 182, at 44.
233. Id.
234. Id.
235. Id.
236. Id.
237. Id.
238. See ARK. CONST. art. 2, § 7 ("[A] jury trial may be waived by the parties in all cases in the manner prescribed by law . . . ."); ARK. R. CRIM. P. 31.1 ("No defendant in any criminal cause may waive a trial by jury unless the waiver is assented to by the prosecuting attorney and approved by the court."); State v. Singleton, 13 S.W.3d 584, 586 (Ark. 2000) (referring to ARK, R. CRIM. P. 31.1 and quoting Fretwell v. State, 708 S.W.2d 630, 632 (Ark. 1986) for the proposition that "'[t]he rule is clear. Criminal cases which require trial by jury must be so tried unless (1) waived by the defendant, (2) assented to by the prosecutor, and (3) approved by the court. The first two are mandatory before the court has any discretion in the matter'").
239. See McCoy v. State, 962 S.W.2d 822, 824 (Ark. Ct. App. 1998) (underscoring the centrality of the defendant's waiver).
240. Burrell v. State, No. CACR 04-406, 2005 WL 419349 (Ark. Ct. App. Feb. 23, 2005), documents what appears to be a typical bench-trial stipulation: "When the trial judge called appellant's case, the judge stated, 'I understand we're here for a bench trial,' to which appellant's counsel responded, 'That's correct, Judge.' Prior to calling any witnesses, the prosecutor asked, 'Being a bench trial, do we have - do we have phases?' Appellant's counsel made the following response, 'No[t] really. We waive the second phase.'" Id. The Court of Appeals ultimately found that "[t]he record does not indicate whether appellant knew that he was entitled to a trial by jury if he so desired; even if he knew of this right, the record is also silent with regard to whether appellant wished to waive his right to a jury trial" and ruled that there was no waiver. Id.
241. See PAULA L. HANNAFORD-AGOR ET AL., NAT'L INST. FOR STATE COURTS, ARE HUNG JURIES A PROBLEM? (2002), available at http://www.ncsconline.org/WC/ Publications/Res_Juries_HungJuriesProblemPub.pdf.
242. Id. at 20.
243. Id.
244. This finding aligns with the general prediction of Viscusi & Chesson, supra note 62, that people seek ambiguity when the probability of loss is high.
245. This refers to the total number of indicted defendants See SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS, supra note 12, at 445 tbl.5.42.
246. We extrapolated these percentages from the data reported by the SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS, supra note 12, at 423 tbl.5.22, with respect to five consecutive years: 1998-2002. The 6% trial rate is close to the average felony trial rate in state courts (7%), which is understandable because most federal trials involve felonies. See, e.g., id. at 416 tbl.5.17; supra note 217 and accompanying text.
247. See SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS, supra note 12, at 423 tbl.5.22. Note again that, under federal law, a defendant's request for a bench trial needs to be consented to by the prosecution and approved by the judge. See supra note 15 and accompanying text.
248. See SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS, supra note 12, at 423 tbl.5.22.
249. See id.
250. See id.
251. See id.
252. We extrapolated these percentages from the data reported by the SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS, supra note 12, at 423 tbl.5.22, as referring to years 1998-2002.
253. See Bibas, supra note 3, at 2472 ("[P]rosecutors have incentives to take to trial only extremely strong cases and to bargain away weak ones.").
254. This explanation aligns with a formal economic model developed by Gerald D. Gay, Martin F. Grace, Jayant R. Kale, and Thomas H. Noe. See Gerald D. Gay et al., Noisy Juries and the Choice of Trial Mode in a Sequential Signalling Game: Theory and Evidence, 20 RAND J. ECON. 196, 197-204 (1989). This model assumes that jurors are "noisier" (more error prone) than judges. Id. at 197. Defendants facing strong incriminating evidence (most of whom are guilty) consequently select the "noisiest" trial mode: a trial by jury. Defendants facing weak incriminating evidence (most of whom are innocent) choose the least noisy trial mode: a bench trial. Id. at 212. The authors substantiate this model by empirical data on bench and jury trials in Florida and Texas. Id. at 206-08. These data reveal that "most defendants choose jury trials even though bench trials have lower conviction rates." Id. at 207;
255. cf. Andrew D. Leipold, Why Are Federal Judges So Acquittal Prone?, 83 WASH. U. L.Q. 151 (2005) (observing that high acquittal rates in federal bench trials have no clear explanation and hypothesizing that they may be related to the decrease in the judges' sentencing discretion).
256. See supra notes 29, 31 and accompanying text. We also could not obtain reliable data on the disposition of criminal cases by Oregon courts. For our purposes, this jurisdiction is nearly as significant as Connecticut, Illinois, Iowa, Louisiana, Maryland, Montana, Nebraska, New Hampshire, New York, and Ohio. Oregon courts have a discretion not to honor the defendant's request for a bench trial, but the prosecution cannot veto it. See supra note 32. Therefore, when the court finds the defendant's stated desire to be tried by a judge alone both willful and informed, the defendant's wish will likely be granted. The Minnesota rule is the same. See supra note 32. In 2001, 60% of all Minnesota trials were bench trials, but the trial rate was only 1%. STATE COURTS 2002, supra note 182, at 61. In 2002, the trial rate was 4% with only 25% of bench trials. STATE COURTS 2003, supra note 182, at 44. There was no reporting on 1998, 1999, and 2000.
257. See supra note 28.
258. See supra note 31.
259. See supra note 30.
260. STATE COURTS 1998, supra note 182, at 72.
261. See id.
262. See id.
263. Id.
264. See id.
265. See STATE COURTS 2000, supra note 182, at 68.
266. See id.
267. Id.
268. See STATE COURTS 2003, supra note 182, at 44.
269. See id.
270. See id.
271. See id.
272. See STATE COURTS 2001, supra note 182, at 63; STATE COURTS 2002, supra note 182, at 61; STATE COURTS 2003, supra note 182, at 44. There were no data on Iowa courts for 1998. The 1999 data were flawed: it reported the overall trial rate of 2.2% as composed by 0.6% and 0.4% of bench and jury trials, respectively. See STATE COURTS 2000, supra note 182, at 67-68.
273. Trial expenses are paid by clients rather than by their attorneys. Arguably, an attorney's willingness to expend her client's money on trial-predicting information does not necessarily indicate that this information is useful. We disagree. The competition in the market for legal services induces attorneys to economize their clients' trial expenses.
274. See NEIL J. KRESSEL & DORIT F. KRESSEL, STACK AND SWAY: THE NEW SCIENCE OF JURY CONSULTING 14-19, 61-92 (2002) (identifying the increasing demand for jury consultant services and analyzing the jury consultant industry).
275. See id. at 65, 74 (describing jury consultancy as a burgeoning business); Solomon M. Fulero & Steven D. Penrod, The Myths and Realities of Attorney Jury Selection Folklore and Scientific Jury Selection: What Works?, 17 OHIO N.U. L. REV. 229, 229 (1990) (observing that jury consultants demand fees upwards of $100,000 per case and work on multimillion dollar cases);
276. Heath R. Patterson, Jury Selection: Prosecution's Final Frontier, PROSECUTOR, Nov.-Dec. 2001, at 29, 29 (reporting that prosecutors often need jury consultant assistance, but cannot afford it because consultant fees are exorbitant);
277. Kate Rix, Jury Consultants Play Meatier Role in Trial Prep, NAT'L L.J., Aug. 7, 2000, at A13 (reporting that the full package of jury selection, monitoring, and persuasion consulting may cost about $200,000);
278. Franklin Strier & Donna Shestowsky, Profiling the Profilers: A Study of the Trial Consulting Profession, Its Impact on Trial Justice and What, if Anything, To Do About It, 1999 WIS. L. REV. 441, 446 (observing proliferation of jury consulting and that its typical clients are the wealthy and the privileged);
279. Stephanie Leonard Yarbrough, The Jury Consultant - Friend or Foe of Justice, 54 SMU L. REV. 1885, 1887 (2001) (stating that jury consultants generally demand high fees);
280. see also What Consultant Will Be Looking for, DAILY ARDMOREITE (Ardmore, Okla.), Mar. 17, 1997, at 2A (reporting that the industry accounts for about 500 jury consultants). Our Yahoo search (run on July 18, 2005) has identified advertisements from eighty jury consultant firms. Some of these firms are listed in the directory of ASTC, the American Society of Trial Consultants.
281. See ASTC, Consultant Locator, http://www.astcweb.org/consultantlocator/ list.php?searchme=Viewall (last visited Feb. 21, 2006).
282. See KRESSEL & KRESSEL, supra note 248, at 14-16, 93-135.
283. Walter F. Becker, Jr., How To Use a Jury Consultant: A Guide for Trial Attorneys, 50 LA. B.J. 426, 427 (2003).
284. Id.
285. Id.
286. Id.
287. Id.
288. Id.
289. Id.
290. See also Bibas, supra note 3, at 2528-30 (arguing that alongside the "shadow of the law," numerous other factors, such as ignorance, money, self-interest, and demographic variation, influence plea bargaining); cf. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 950 (1979) (stating that in divorce and other cases the law impacts the negotiation and bargaining that occur before the parties reach the courtroom).
291. See FISHER, supra note 4, at 230 (attesting that plea bargain is a prevalent form of case disposition in American courts); Scott & Stuntz, supra note 7, at 1911-12. For a powerful critique of trial-centeredness, see Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 YALE L.J. 1097, 1150-54 (2001).
292. See supra notes 113-24 and accompanying text.
293. LAFAVE ET AL., supra note 18, § 26.3(g), at 1214-16 (stating that the prevalent doctrine exempts from appellate review any sentence that falls within statutory limits).
294. POSNER, supra note 97, at 542-45 (observing that judges are generally reluctant to make decisions that may damage their reputation).
295. See, e.g., Fred B. Burnside, Dying To Get Elected: A Challenge to the Jury Override, 1999 WIS. L. REV. 1017, 1037-38 (observing that state judges uniformly campaign as tough on crime and sometimes seek death penalty cases to get their name in the press and enhance their tough-on-crime reputations);
296. Jason J. Czarnezki, Voting and Electoral Politics in the Wisconsin Supreme Court, 87 MARQ. L. REV. 323, 346 (2003) (observing that the electorate prefers judges who are tough on crime); see also Posner, supra note 129, at 1267 (underscoring state judges' dependency on the public opinion and observing that "[a]s long as the populist element in adjudication does not swell to the point where unpopular though innocent people are convicted of crimes or other gross departures from the rule of law occur, conforming judicial policies to democratic preference can be regarded as a good thing in a society that prides itself on being the world's leading democracy").