Know The Odds

At a booze-enhanced social gathering a couple weeks ago, I met a woman who had been convicted of some kind of Federal drug offense. She was pleasant enough to talk to but when she found out I was a lawyer, she wanted to tell me all about her story and how unfair it was that she had been “forced” to plead guilty and hadn’t really done anything wrong.

Now, it’s not like I think I got the whole story from this woman after she’d had a few cocktails at a social gathering. Chances are pretty good that if her attorney told her she was better off entering into a plea arrangement, there was a reason for that. In my experience people convicted of serious crimes are always elliptical in telling people they’ve just met all of the relevant facts. This woman specifically had some serious problems with her tale. She couldn’t or wouldn’t articulate the name of the charge to which she had pled guilty. Sketchy. She also claimed that she had been tried for the exact same crime, three times in a row, in the same court, and that she accepted a guilty plea only after having been acquitted twice previously. Something makes me doubt that both her second and third defense attorneys were so dim as to have forgotten the double jeopardy rule during the course of two jury trials (professors tend to dwell on the double jeopardy rule in most law schools), so once again, there was almost certainly more to the story than was disclosed to me.

This is not uncommon. In the bulk of social events where I meet new people and they find I’m a lawyer, I wind up getting told half or less of a story, all from one person’s perspective, and asked to affirm that an injustice has been done. Which is one of the hazards of the profession and as professional hazards go, that one isn’t all that awful.

But here’s my point for today’s post. This woman said that if she thought she had been given a reasonable chance to present her case, she would have been acquitted. However, she believed (without reference to any kind of systemic or statistical data) that federal prosecutors win basically all their cases because the system is stacked in their favor. She feared the odds against her. That’s what she claimed motivated her to plead guilty to a charge of which she said she was innocent.

In some ways, she was right to fear the prosecution. There are a lot of institutional advantages that the prosecution has, not the least of which is the aura of righteousness, credibility, and truth in which the prosecution and its primary supporting witnesses (law enforcement officers of various kinds) come clothed to court. They’re wearing the white hats, you’re not, and that’s a very big deal. But there are also some other factors at play, such as the occasional juror or judge who takes the “beyond a reasonable doubt” standard of evidence seriously, and various rules of evidence that stands in between the jury and just any old bit of hearsay, wild suppositions of a cop, or unsubstantiated speculation offered by someone with an advanced degree. So my overall impression of the system is that a guilty verdict in a contested trial is not always a slam dunk for the prosecution.

And having met and socialized with prosecutors before, my impression was that of the cases that actually go to a jury, the prosecution wins roughly half of them. My new acquaintance simply disbelieved me.

By way of Defending People, I have found some statistics with which this dispute can be validated. The vast majority of cases are disposed of by way of guilty pleas, which is common knowledge.  About 90% of all Federal cases and more than 70% of state court cases (looking at the 75 largest counties in the US) are disposed of with guilty pleas.  And indeed, my interlocutor pled guilty herself in her own case, in her own description because she feared the odds of proceeding to trial.

But this statistic looks at the total number of criminal cases filed and compares them to their dispositions. That wasn’t the proposition as framed–of the cases that go to a jury, what are the statistical chances that the prosecution comes up with a guilty verdict?  The U.S. Department of Justice has done that research for me.  While their newsletter points to the glowing odds of success for prosecutors overall, by breaking out the guilty pleas and looking only at cases where no plea is entered, we find that the odds at trial are actually favorable to defendants.

In state court, only 15.42% of all non-plea cases result in guilty verdicts.  Close to four out of five are then dismissed.  The odds are better for the prosecution in Federal court, where 40.99% of the non-plea cases produce guilty verdicts; just under half of the cases get dismissed when there is no plea.  Now, only a tiny number — just under 5% in state court and just over 9% in Federal court — result in acquittals. But a dismissal is as good as an acquittal from the defendant’s point of view, because it results in no conviction.

So my interlocutor was not only wrong, I was too — we were both too generous to the prosecution.  Of the cases in which there is no plea arrangement, the prosecution loses most of the time.

A reasonable claim can be made that these may be numbers that conceal more than they reveal. For one thing, there is no breakout of jury versus bench verdicts. Most of the non-plea cases resolved by dismissal rather than verdict, so who initiated the dismissals? Some were motions by the defense, some were made by the prosecutors in the interest of justice, and some initiated sua sponte by the court, and we have no breakdown there, much less any understanding of what went in to those decisions. Were the dismissals with or without prejudice? Stipulated or opposed? How many of them were made after the court entertained evidence, or after it had empanelled a jury? How many of them were followed up by a referral for prosecution in the parallel system? The DoJ report doesn’t answer any of that for us.

What it does say is that overall, if there is no plea, guilty verdicts result a bit more than two times out of five in Federal court, and a bit more than one time in seven in state court. My interlocutor was very wrong; the prosecution doesn’t win them all; even I was too generous to them, because the prosecution’s win ratio in non-plea matters is statistically worse than half.

When you look at this number, don’t lose sight of the fact that most criminal cases resolve by plea. There is a reason for that. So it’s time for me to make a


Even if the prosecutor might not be holding as many cards as he wants you to think he is, your case might still suck. Even if you do nothing but play the odds, the prosecutor is going to win enough cases to be scary. Only your own attorney can tell you if you have a realistic chance at walking away with an acquittal after trial. If your case does suck, a plea arrangement may be the best you can realistically hope for. Even odds of one in seven that you’re going to be convicted of the charges brought against you should be taken seriously because prison is a Very Bad Place. If going there anyway is a functional inevitability, the right move is probably minimizing the amount of time you must spend there.

So if you real this post and later plead “not guilty” to a felony charge and it doesn’t work out for you, don’t come crying to me, pal. This blog post is not legal advice, it is only a generalized commentary about the law. It’s a blog, for crying out loud. “Oh, I read on the internet that all you have to do is tell the D.A. to take a hike and you pretty much just automatically get off scot free!” That’s not what I said — I mused for a while about a somewhat surprising set of statistics, and then I said, “Your case might suck.”

When your defense counsel looks at the case and tells you that you’re better off with a plea arrangement, that’s legal advice and she’s giving it to you for a reason. That reason is not that she’s been bribed by the prosecution, it’s not that she’s prejudiced against you, it’s not that she’s incompetent or scared to try a case, and it’s not it gives her pleasure to suggest it to you. She’s on your side. She’s very likely the only friend you’ve got who’s in any position to offer you any meaningful help. Treat her accordingly. Listen carefully to her advice, ask her intelligent questions about why she’s giving you that advice, and seriously consider following it as dispassionately as you can.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

One Comment

  1. As a math nerd, and a statistical junky, thank you. There is nothing more satisfying than to see someone actually use "case by case" in an appropriate (and literal) way.

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