You’re no doubt familiar with the constitutional guarantee to a jury trial in criminal cases. This right can be found in the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury….”
But every now and then, a criminal defendant wants to waive (give up) the right to a jury trial. Waiving the right to a jury trial means that the judge alone will hear and decide the case. Known as a “bench trial,” this option is unquestionably cheaper and faster than trying the case before a jury. Juries must be selected, instructed, and waited on during deliberations. But it can be surprisingly difficult for a defendant to receive a bench trial, and in some situations, it might be impossible.
Why Is the Right to a Jury Trial Important?
The right to a jury trial holds important historical significance, and its justification was one of public policy: The state has an interest in protecting its citizens’ right to a fair and impartial trial—an interest that is furthered by spreading the responsibility for guilty verdicts among 12 people instead of just one.
Up until 1930, the right to a jury trial was more of a requirement than a recommendation. But in Patton v. United States, the Supreme Court held that the right was for the protection of the accused and the accused can give up this protection. (281 U.S. 276.) The Court reasoned that the same principle applies in a plea deal where the defendant gives up the right to trial completely.
What Are the Pros and Cons of Waiving a Jury Trial?
In many cases, it’s actually to the criminal defendant’s advantage to have a jury, rather than a judge, decide the case. The most basic reason is summed up in the phrase, “All it takes is one.” That is, out of 12 jurors, it takes just one juror to refuse to vote guilty and hang (deadlock) the jury.
Sometimes, though, waiving the right to a jury and handing the case to the judge makes more sense. For example, a bench trial might be a good idea when the case involves particularly awful facts or bad pretrial publicity that could sway or impact the jury. A defendant’s background or past record could also be distracting to a jury but less so to a judge. Getting assigned a judge known for giving criminal defendants a fair shake could also make a bench trial appealing.
(Read our article on Bench Trials vs. Jury Trials to learn more about how bench and jury trials compare and when a bench trial might be a good choice for a criminal defendant.)
How Defendants Waive Their Right to a Jury Trial
Many decisions during the course of a criminal trial are tactical ones made by the defense attorney, such as choosing which witnesses to call (though these decisions should be made after discussions with the client). But like the decision to plead guilty or not guilty or to testify or not, the decision to give up the right to a jury trial is one for the defendant, not the defense attorney. While the attorney can certainly advise the client, the ultimate decision belongs to the defendant.
Because the right to a jury trial is so important, judges want to make very sure that defendants understand what they are giving up when they choose a bench trial. Generally, the judge will question the defendant in open court, on the record, as to whether the defendant knows what’s in store with a bench trial and what is given up in terms of a jury trial. For instance, the judge will likely inform the defendant that, in a bench trial, one person decides their fate, but in a jury trial, 12 people must reach a unanimous decision on guilt and the defendant may participate in the selection of these 12 individuals. The judge needs to establish that the defendant’s waiver is knowing, intelligent, and voluntary.
Waiver of a Jury Trial in the Federal System
Defendants who are charged in federal district court can ask to waive their right to a jury, but the court and the prosecutor must agree. The defendant’s waiver must be in writing and done knowingly and voluntarily.
Interestingly, the judge must find the defendant guilty or not guilty; there’s no judicial counterpart to a hung jury. And if the defendant makes a request before the judge announces a verdict, the defendant has a right to a written decision or opinion, setting out the facts that the court relied on when arriving at its verdict. (Fed. R. Crim. P. 23.)
Waiver of a Jury Trial in State Court
In most states, defendants can waive their right to a jury trial. Only a few states provide defendants with the unilateral right to demand a bench trial—meaning the prosecutor and judge can't veto the decision. Most states, like the federal government, require the consent of the prosecutor, judge, or both.
The picture changes a bit when the defendant is facing the possibility of the death penalty. Some states specifically prohibit bench trials in this situation, harkening back to the reason for requiring juries of 12 to decide a defendant’s fate: When a death sentence is possible, the state has every interest in making sure that the decision is fair, which is more likely to happen when 12 people, rather than one, make that ultimate call.
Talk to Your Attorney
Waiving the right to a jury trial has significant implications. And, in many states, the defendant doesn’t have an absolute right to withdraw the waiver. So it’s important to consult with an experienced criminal defense attorney before making these decisions.