The U.S. criminal justice system is broadly considered to be one of the most ‘fair’ and progressive justice
systems in the world. Based on the concept of ‘innocent until proven guilty’ and benefiting from a jury
of one’s peers, it appears to provide accused parties a favorable position. However, those who have
been exposed the operation of the justice system realize it is anything but fair. In fact, the criminal
justice system is heavily weighted in favor of the U.S. Government which is almost guaranteed to
achieve a conviction against any defendant it pursues.
While there are many flaws in the U.S. criminal justice system, the following seven characteristics are
perhaps the most egregious examples of how the system provides the Government with an almost
unbeatable position.

  1. Grand Jury Process. Prior to indicting an individual of a criminal offense, the U.S. Department of Justice (also referred to as the Government) must have a Grand Jury find cause for the indictment. The Grand Jury process is a one-sided affair whereby the Government selects a jury and then interrogates witnesses of their choosing. The witnesses are not allowed to be represented by council and there is no cross examination of their testimony. The process is conducted in ‘secret’ and the targeted individual(s) is not informed of the Grand Jury process. Furthermore, while the Government can call any witnesses they desire, the targeted individual(s) is not allowed to represent themselves, cannot be represented by legal counsel, and is not allowed to present witnesses in their defense. This process virtually guarantees a verdict to indict as the Government controls all aspects of the Grand Jury process.
  2. Co-Operating Witnesses / Deals. The Government is allowed to enter into co-operation agreements with individuals, including known criminals, co-defendants, and other persons of interest, in return for their testimony against the defendant(s). As part of these ‘deals’, the Government can offer “incentives” such as an agreement not to prosecute them or other individuals (including family members), reduced fines, and reduced or suspended prison sentences. Co-operation agreements have “strings” attached as the cooperator needs to assist the Government in achieving a guilty verdict against the targeted defendant(s). Co-operation agreements provide an incentive to lie, especially if that is what is required in order to obtain the benefits offered by the Government. Targeted individuals have no defense against co-operation agreements and no comparable ability to “negotiate” with potential witnesses.
  3. The “Trial Penalty”. While the U.S. legal system theoretically gives every individual the right to a trial, the Government makes sure that this rarely happens. The number of federal criminal defendants opting for a trial has fallen by 60% over the last two decades and the number of criminal defendants who went to trail fell from 7% in 1998 to 2% in 2018 (4,710 individuals to 1,879 individuals). Taking that a step further, only 320 of 79,704 federal defendants went to trial and won their cases in 2018 — less than 1/2 of one percent. As trials have become more rare, guilty pleas have become more common rising to 90%in 2018 compared to 82% in 1998. These trends are largely explained by a term referred to as the “trial penalty” whereby the Government makes it very risky to proceed to trial. Generally, they will offer a defendant a lesser charge (or fewer charges), a lower fine, and a lower prison term if they plead
    guilty. Conversely, the Government will threaten that if the case proceeds to trial, they will increase the seriousness of the charge, add charges, and pursue maximum prison terms / fines. Given the Government’s rate of success, the risk of going to trial often results in defendants pleading guilty — even innocent individuals who realize that the potential downside of a loss during trial is far worse than pleading guilty and accepting punishment for a crime they did not commit.
  4. Cost of Defense. While every defendant is guaranteed legal representation, the reality is that Government appointed attorneys are overworked, underfunded and lack the supporting resources to successfully mount a defense (resources such as legal researchers, private investigators, etc.). It is unfair to pit a single court appointed attorney against a government prosecution team that has unlimited resources and an unlimited budget. Not only does the Government have its own army of attorneys, but they can also bring to bear substantial other resources such as the FBI and many other investigative resources that most private defendants do not have access to. The only defendants who can mount an effective defense are those that have substantial personal funding, and it is not uncommon for the Government to stretch out legal proceedings so that defendants are no longer able to support the financial requirements of professional legal representation.
  5. Jury Bias. The U.S. Constitution states that an individual is innocent until proven guilty, and every defendant has the right to be judged by an independent jury of their peers. However, this is not how the jury system works. Multiple studies have shown that juries generally believe that a defendant is guilty prior to the start of a trial. The jury believes that the Government would not bring charges against an individual unless they had substantial facts supporting the defendant’s guilt. This pre-disposed bias means the defendant is guilty until proven innocent — exactly the opposite of the commitment promised by our Constitution.
  6. Judging Bias. A vast majority of federal judges (more than 80% based on a Cato Institute analysis) have built their legal careers as prosecutors or working for the Government and while they are theoretically committed to objectivity, it is difficult to believe that a prosecution bias does not exist.
  7. Disclosure of Evidence / Methods of Obtaining Testimony. While the Government is theoretically required to share all evidence they uncover with defendants, there are numerous examples of their failure to do so. By failing to disclose their findings, the Government can negatively influence a defendant’s defense, and this may lead to an unjust guilty verdict. The concern is that there is no way for defendants to determine if all evidence has been disclosed.