You’re no doubt familiar with the Constitutional guarantee of a trial by jury, contained 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 now and then, a criminal defendant wants to forego the jury and have the judge alone hear and decide the case. Known as a “bench trial,” this method is unquestionably cheaper and faster than trying the case before a jury, which must be selected, instructed, waited-on while it deliberates, and fed (and occasionally housed). But it’s surprisingly difficult for a defendant to receive a bench trial, and in some situations, it may be impossible. Read more to find out why, and under what circumstances, a bench trial is a good choice for a criminal defendant.

Bench Trials are Relatively New

Until 1930, a criminal defendant’s right to a jury trial was understood as a requirement that a jury hear the case unless a law specifically gave the accused the option of a bench trial. In that year, the Supreme Court decided a case that indirectly paved the way towards bench trials. The Court held that it was okay for a defendant to agree that eleven jurors would decide his case, after the twelfth fell ill. The judges went on to say that once you dispense with the twelve-person jury, you may as well bless the no-jury approach as well. (Patton v. United States, 281 U.S.276 (1930).)

The Patton court didn’t completely jettison the historical reasoning behind requiring jury trials. That justification was one of public policy: The state has an interest in making sure that its citizens’ lives and liberties are preserved, an interest that is furthered by spreading the responsibility for guilty verdicts among twelve people instead of just one. So, the court noted, before a jury trial can be waived, the court and the prosecutor must agree. A later case gave the nod to a defendant who had waived his right to the assistance of counsel, and then waived his right to a jury trial. (Adams v. U.S., 317 U.S. 269 (1942).)

Why Choose a Bench Trial?

Most of the time, it’s 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 twelve jurors, it takes just one juror to refuse to vote guilty and hang the jury. After that, the case can be retried, but often it will be plea-bargained down to a lesser offense, or even dismissed altogether. The prosecution, on the other hand, needs to convince all twelve. With a jury trial, the odds favor the defense.

However, sometimes handing the case to the black-robed figure behind the imposing bench makes sense. For example,

• Awful facts. The defense may be concerned that, in cases that involve particularly terrible acts of violence, a jury will be swayed, if not distracted, by the evidence. Judges routinely encounter disturbing scenarios and are arguably better equipped to put aside their emotional reactions and focus on the case.
• Bad pre-trial publicity. Sometimes, even a change of venue (moving the case to another geographical area) won’t dissipate the effects of extensive coverage. Again, a judge may be better able to ignore such accounts.
• A particularly difficult defendant. Defense attorneys might be concerned that their clients’ appearance, background, attitude, or past record will interfere with the jury’s job of evaluating only the evidence before it. A judge is perhaps better able to ignore such things.
• An attractive judge. In some courthouses, litigants learn in advance which judge will hear the case (often, it’s simply a matter of knowing whose courtroom is free and ready to take a new case). Judges have reputations, and experienced defense attorneys know which ones are fair, and which ones are effectively like another prosecutor. Defense attorneys will avoid bench trials before the latter, but consider them when the judge is known for giving criminal defendants a fair shake.

Waiving Jury in the Federal System

Defendants who are charged in Federal District Court can ask to waive jury, but the court and the prosecutor must agree. (Federal Rules of Criminal Procedure Rule 23a.) The waiver must be in writing. 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 this 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.

Waiving Jury in State Court

After the 1930 Patton decision, state courts and legislatures in most states began issuing opinions and writing statutes and court rules that provided for the right to waive a jury trial in felony cases. In a few states, defendants cannot waive jury unless a specific constitutional provision, statute, or court rule expressly allows it.

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 twelve 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 twelve people, rather than one, make that ultimate call.

How Defendants Waive their Right to a Jury Trial

Many decisions during the course of a criminal trial are 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 forgo 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. According to the details contained in state law, the judge will question the defendant in open court, on the record, as to whether he knows what’s in store with a bench trial: One person decides his fate. Some states require the defendant to sign a written waiver.

Questions to Ask Your Attorney

• Is mine the kind of case that will fare better (for me) if tried before a judge?
• How can we find out which judge will be assigned to my case?
• Why do federal judges have to make “findings of fact” as to what they based their decision on, but a jury does not?