The Boston Globe ran a series recently describing how some Massachusetts judges tend to find defendants not guilty of drunk driving charges.   In Massachusetts, a defendant can choose to have a jury trial or a “bench” trial before a judge without a jury.  The Globe story focused on the higher percentages of not-guilty verdicts in bench trials than in jury trials.  The writers were suggesting that defense lawyers “game” the system by choosing bench trials before certain judges.  The articles highlighted several cases where a “slam dunk” guilty OUI defendant was let go by a defense-friendly judge.

As is often the case when the press examines the criminal justice system, the truth is not as simple as the articles suggest.  Here are several problems that I find with the Globe’s series on this issue:

1.  When you examine the difference between jury and bench trials, there is not a great difference in the ratio of “not guilty” to “guilty” verdicts.

2.  However, there apparently is a higher rate of not-guilty verdicts in bench trials.  One reason for this is that lawyers (defense as well as prosecutors) often recognize that a case is weak for the Commonwealth, and, rather than waste the public resources on a case that is very one-sided, decide to put the facts before a judge.  These are cases that a jury would most likely agree deserve a not-guilty verdict.

3.  Although a police officer can arrest a driver if he or she has probable cause to believe that the driver is operating under the influence, to find the defendant guilty the fact finder must be convinced beyond a reasonable doubt.  “Beyond a reasonable doubt” requires more certainty and confidence in the evidence than “probable cause” to arrest requires.

4.  There are rules of evidence that are constitutionally and legally required in a trial that are not required in an arrest.  For example, many police officers give drunk driving suspects the Horizontal Gaze Nystagmus test to assess whether the driver is under the influence.  This test is not admissible in Massachusetts courts, because it is a neurological test that most police officers and state troopers are not qualified to interpret.

So yes, judges sometimes do find defendants not guilty of driving under the influence.  But this is not because judges think drunk driving is not a serious issue, nor is it because they are friends with defense lawyers.  Although the Globe pointed to some apparently egregious cases, the fact is that most of the time, when a judge finds a defendant not guilty, it is because it is the right thing to do.