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Instructions, too, tended to be dull, dry, and legalistic. In some states, in fact, there are standard or “pattern” instructions, officially approved. In 1961, the Illinois Supreme Court appointed a special committee to draft standard instructions for criminal cases. The committee found that a quarter or more of the criminal appeals from the forties and fifties involved “questions of instructions,” and that “error” in instructions was the basis for a quarter of all reversals. The committee set about to draft instructions that would be “free of error, and in simple, concise, unslanted, non-partisan language.” In 1968, the “pattern instructions” received the imprimatur of the Illinois Supreme Court. The court’s Rule 451 made the pattern instructions mandatory, to all intents and purposes.12 In state after state, these dreary, arcane formulations are the only “instructions” that the poor jury gets to hear.

The Twilight of Trial by Jury

One of the major secular trends in criminal justice since the early nineteenth century has been the decline of trial by jury. This was already well advanced by the late nineteenth century, as we have seen, and it only accelerated in the twentieth. In 1920 or so, slightly less than a quarter of the cases in the Cleveland Court of Common Pleas were decided through trial by jury (591 out of 2,539 cases disposed of). A fair chunk were dismissed, and almost half ended abruptly with a guilty plea.13 Out of some 48,856 criminal cases in federal court, in the fiscal year ending June 30, 1940, there were only 4,941 jury trials. Another 1,390 cases were disposed of by “bench trial”—that is, a trial without jury run and decided entirely by the judge. The vast majority were simply “not tried”; they ended with a guilty plea.14 Some sort of record was set in Rhode Island; in 1938 and 1939, not a single felony defendant went to trial at all. In 1939, this noble state reported 632 defendants charged with major offenses. The court dismissed exactly seven of these; and the other 625 pleaded guilty. Not a single citizen of Rhode Island, if these figures are correct, served on a criminal jury in a felony case or was convicted or acquitted by a jury of her peers during the entire year.15

The bench trial is an innovation of the twentieth century. One state, Maryland, had a form of bench trial in the nineteenth century; and in some states, toward the end of the century, a defendant who faced a misdemeanor charge before a justice of the peace or other low-level judge could, if he wished, dispense with a jury.16 Most states, however, stood firm. Trial by jury meant trial by jury; a defendant could plead guilty, but otherwise, it was a jury or nothing.

As late as 1930, it was an open question whether a defendant in federal court could waive his right to a jury. In that year, the Supreme Court said yes, so long as the defendant’s consent was “express and intelligent,” and the judge and the government agreed.di Rule 23 of the Federal Rules of Criminal Procedure allowed a defendant to waive a jury trial “in writing with the approval of the court and the consent of the government.” By 1938, twenty-one states and the federal government allowed bench trials. In some of these states, indeed, the bench trial became quite popular: in New Jersey, 54 percent of all defendants went this route; in California, 36.1 percent. Statistics for a group of eight states showed that the accused waived the jury least often in homicide cases (21.9 percent). It was waived in 45 percent of the sex-offense cases, and in 58 percent of the larceny cases.18

By 1960, it was possible to waive the jury in every single state; New York was apparently the last holdout, and it capitulated by 1957. There was, however, a good deal of variation, state by state, in the use of bench trial in the 1960s. According to Kalven and Zeisel’s figures, in Wisconsin the jury was waived in 79 percent of the cases of major crimes; in California, 74 percent. But in Utah only 5 percent of the