One of the most important decisions a criminal defendant must make is whether to take their case to trial before a judge (called a bench trial) or jury. The U.S. Constitution gives defendants the right to have a jury of their peers hear all the evidence and determine whether the prosecutor has proven them guilty beyond a reasonable doubt. Defendants, with the advice of counsel, can waive (give up) their constitutional right to a jury trial. By waiving a jury trial, the defendant opts for a bench trial before a judge. But a bench trial is not guaranteed by the Constitution. If the judge disapproves or the prosecutor objects, the case goes to a jury.
Why might a defendant ask for a bench trial over a jury trial? Let’s take a look at both options—jury and bench trials—and their advantages and disadvantages.
Overview: Jury Trials and Bench Trials
At the most basic level, jury trials are decided by a group of your peers, while bench trials are decided by a judge. But the process and procedures involve much more.
Jury Trials
In most criminal cases, juries (also called petit juries) are made up of 12 members of the community. Potential jurors receive summons to appear for jury duty and sit through a selection process called “voir dire” (vwar-deer). During voir dire, the judge, prosecutor, and defense attorney ask questions to determine which individuals can hear and decide the case impartially. The selected jurors will then listen to all the evidence presented by both sides (prosecutor and defense) and determine whether the defendant is guilty or not guilty. During the trial, the judge acts like a referee by overseeing the proceedings and determining what evidence will be allowed or excluded.
Bench Trials
Bench trials tend to be less common in criminal cases. A bench trial involves the judge alone acting as referee and determining both guilt and punishment. No jury sits in the courtroom. The judge will make the legal rulings (evidence and procedures), decide issues of facts (the defendant's guilt), and impose the punishment (if convicted). Bench trials generally take less time and money than jury trials.
Why Choose a Bench Trial?
Several advantages exist for defendants who opt for, and are granted, a bench trial. (Remember, there's no right to a bench trial.) Often, the choice comes down to the circumstances of the case.
Publicity or Bad Facts
Defense counsel might advise a defendant in a high-profile case to consider a bench trial. In such cases—especially those featured prominently in the news—it can be difficult for the defense to find unbiased jurors. These cases tend to take a while to even get to trial, which gives the community ample time to see and read news stories about the offense and form opinions. Really bad facts in a case, such as a gruesome murder, can also sway juries because people generally want someone to pay for a particularly heinous crime, even if it’s the wrong person.
While a defendant in either situation would likely ask the judge to move the case (venue change), judges are often reluctant to grant a change of venue. A bench trial avoids the need to convince jurors to change their already formed opinions.
Complex and Numerous Legal Arguments
Trials tend to involve lots of objections and can be very slow moving and tedious, which can be off-putting to jurors who just want to get home and may take it out on the side holding up the process. Bench trials offer the defense a chance to make more objections and legal arguments that don’t risk putting off a judge as much as a jury.
Judges also have more knowledge about the law and evidence. They better understand the process and tactical decisions both sides make, whereas jurors might view repeat objections or other tactical decisions to be signs of evasiveness or even guilt. This risk is particularly true when it comes to a defendant’s right to remain silent. Although instructed not to, jurors may see a defendant’s choice not to testify as a sign of guilt. Judges, on the other hand, recognize that solid tactical and legal reasons exist behind this decision—some that might even point to innocence.
A Favorable Judge
Another advantage to a bench trial can be predictability. In many jurisdictions, the same judge who hears pretrial motions will also be the trial judge. Having one judge throughout the case gives the defense an opportunity to shape the judge’s opinion of the evidence and case long before the trial begins. Defense attorneys can research the judge’s past decisions to learn how they’ve ruled on particular issues. With a jury trial, defense counsel only has voir dire (jury selection) to learn how the jurors feel about certain topics. Jurors can also be unpredictable. Whereas judges will need to justify many of their decisions on the record, jurors do not need to provide explanations on how they reached a decision.
Why Choose a Jury Trial?
While advantages exist to having a bench trial, most defendants choose to exercise their constitutional right to a jury trial. Again, the circumstances of the case will lend to the decision.
Unanimous Verdicts: It Only Takes One
First off, a defendant may choose a jury trial to play the odds. If a jury decides to convict a defendant, their decision must be unanimous—all 12 jurors must agree. The prosecution needs to convince all 12 of the defendant’s guilt, whereas defendants need only convince one lone juror that reasonable doubt exists. These odds favor the defense. If all 12 jurors don’t agree, it’s a hung jury and the prosecutor would need to retry the case. In some cases, due to time and expense, the prosecutor will decide not to retry the case.
Participating in the Jury Selection Process
Defendants also get to participate in jury selection through voir dire. Their attorney will ask the jury panel lots of questions, sometimes very personal, in order to learn more about them and how they feel on certain issues. Answers from the potential jurors provide insights into their views and potential biases. Both sides—the prosecutor and defense—have a say in who gets put on the jury. Neither side get to choose the judge in the bench trial. Rather, it’s luck of the draw.
Public Scrutiny and Inflammatory Evidence
Another benefit to picking a jury trial involves public scrutiny. Most judgeships are elected positions and public opinion matters. One controversial verdict and a judge faces a loss at their next election. Juries typically are not subject to public scrutiny like a judge. Although judges should not be swayed by public opinion, the potential exists and a defendant might want to avoid the possibility.
Having a judge as both referee and decision-maker also comes with risks when it comes to inflammatory evidence. As a referee, the judge weeds out evidence that’s highly prejudicial or irrelevant to the case. A judge wearing both hats might exclude such evidence and then need to disregard it later when deciding issues of guilt. In a jury trial, excluded evidence often won’t make it in front of the jurors. Depending on what the evidence is, a defendant might not want to risk having it come before the judge who’s deciding their guilt.
Consult With Your Attorney
Defendants need to carefully consider their decision of whether to opt for a jury or bench trial. If you’re facing criminal charges, you have numerous decisions to make. Contact a local criminal defense attorney as soon as possible. An experienced attorney can explain your options and help you make informed decisions in your case.