Factors to consider in deciding whether to waive the right to a criminal jury trial

A person charged with a crime (a “defendant”) has a constitutional right to a trial by jury. The defendant may choose to waive, or give up, that right and proceed to trial before a judge alone. This is called a “bench trial.” If you or someone you care about is facing a criminal trial, here are some factors to consider in deciding whether to waive the right to a jury trial:

1. The judge’s reputation and track record in bench trials

If bench trials are rare in your jurisdiction, it may be difficult to determine the judge’s record, and you will have to rely on the judge’s reputation as being more or less pro-law enforcement. Some criminal courts encourage bench trials to help clear the calendar; in those courts, the judges will have extensive histories. The judges most likely to acquit will have the most jury waivers.

2. The nature of the defense

Legal defenses—that is, defenses based solely on an argument of law – play better with judges, while jurors lend a more sympathetic ear to defenses that attack the prosecutor or the propriety of the prosecution. If the main thrust of the defense is something along the lines of, “I was standing outside the liquor/convenience store when this fellow ran out and stuck a bag in my hand; I took $500 to carry a bag one block, but had no idea of its contents,” then the defendant probably will want to try his criminal case to a jury. One or two jurors might buy this argument, but a judge likely won’t. If the case involves several defendants, a bench trial might be a better option. Judges might compartmentalize evidence against multiple defendants more accurately than juries. Finally, consider the possibility of nullification. Juries occasionally “nullify” – that is, acquit when the evidence warrants a conviction, but the prosecution seems unjust or excessive; or the defendant is likable; or the prosecution, police, or victim offends the jury. Judges don’t nullify.

3. Credibility issues

Judges, more so than some jurors, are likely to believe police officers. On the other hand, a judge, more so than a jury, is likely to find the testimony of a sympathetic, but confused, witness insufficient to convict.

4. Excluded evidence

If certain evidence in the case has been suppressed, the judge will know about the evidence, but a jury will not. Further, if the defendant has a record of prior crimes, the jury may never hear about it, even if the defendant testifies, but a judge certainly will know about it (and will be hard pressed to ignore it).

5. The penalty for non-waiver

In those jurisdictions where bench trials are common, a judge might penalize the defendant with a harsher sentence if he refuses to waive a jury trial.

6. The slow guilty plea

Sometimes, there is no plausible defense to the crime charged, but the defendant refuses to plead guilty. In that instance, a bench trial might avoid a lengthy jury trial that only will aggravate the judge and earn a severe sentence for the defendant.

7. The need to preserve legal issues

A guilty plea generally waives all pre-trial legal issues. If the case involves a legal issue on which there is a substantial chance of success on appeal, a bench trial might be the best way to preserve that legal issue and ensure the opportunity to appeal.