The Trial Lottery

50 Pages Posted: 17 Jan 2020 Last revised: 30 Sep 2020

See all articles by Kiel Brennan-Marquez

Kiel Brennan-Marquez

University of Connecticut - School of Law

Stephen E. Henderson

University of Oklahoma - College of Law

Darryl K. Brown

University of Virginia School of Law

Date Written: January 17, 2020


Juries are the lifeblood of our criminal justice system. As the Framers clearly understood, and as the Supreme Court has consistently reaffirmed in recent years, their value goes far beyond accuracy in individual cases. Criminal juries are a democratic bulwark against overzealous state power; they keep prosecutors and police in check. Accordingly, the disappearance of traditional criminal trials is not just a problem for individual defendants. It is a problem for all of us.

In this Article, we propose a novel mechanism to (partly) restore the criminal jury its rightful pride of place—a trial lottery. In short, a small percentage of cases that plead out should be randomly selected for jury trial notwithstanding the plea, using the latter’s terms as an upper limit on punishment. Such lottery trials would yield three systemic benefits. First, they would counteract asymmetries in plea negotiations, leading to a more level field of bargaining. Second, they would ‘audit’ the law enforcement process, revealing patterns and irregularities in how police investigate and how prosecutors charge. Third, they would revitalize the role of jurors, lawyers, and judges in criminal adjudication. A trial lottery could thus restore a measure of accountability and democratic spirit to criminal justice systems that increasingly feel void of both.

Keywords: jury trials, criminal procedure, adjudication, lottery, random, disappearing trial

Suggested Citation

Brennan-Marquez, Kiel and Henderson, Stephen E. and Brown, Darryl K., The Trial Lottery (January 17, 2020). Virginia Public Law and Legal Theory Research Paper No. 2019-03, Wake Forest Law Review, Forthcoming, Available at SSRN:

Kiel Brennan-Marquez

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

Stephen E. Henderson

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States
405.325.7127 (Phone)


Darryl K. Brown (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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