Why Trial by Jury is Usually a Better Choice than a Bench Trial


     By Greg Smith & Associates

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People – including lawyers - often ask me if they should “go for a bench trial, or a jury trial”. For those of you don't know, a “bench” trial, is a trial in which a judge, not a jury, determines if you are guilty or innocent.

For me the answer is simple: absent very unusual circumstances, you always want a jury trial. The Founding Fathers of this country understood how hard it was for a judge, who is on the government's payroll, to rule against the very entity that butters its bread.

Don't get me wrong, there are some very good judges out there, but judges have to answer to people, which include those who gave them their judgeship, law enforcement, and the media. Jurors only have to answer to their own consciences.

Many of my colleagues are very cynical when it comes to bench trials, and for that reason, most of them do not like the juvenile court system in which you cannot get a jury trial under any circumstance, and nearly all of those trials end up in a guilty finding.

It has been my experience that district court judges are fairer than town (justice-court) judges. In fact, I have seen some judges find people guilty, and I really had to scratch my head as to how. On the other hand, I have seen some judges find people not guilty, even though the judge actually felt the person was indeed guilty. When a judge goes against his or her own gut instinct and properly applies the “proof beyond a reasonable doubt” standard, it is very refreshing. Most defense attorneys feel that is the exception, however, not the norm.

Let's assume you are accused of a felony in Utah, and your lawyer tells you that the Judge is very fair. You may want to consider a bench trial. However, with a jury, you only have to convince one person of the eight in the jury that you are not guilty. So, the odds are better for you.

Judges are not only human; many of them are former prosecutors, too. Whereas, jurors are people just like you, and as they look at you, they may be thinking, “but for the grace of God, there I sit!” Also, judges have put so many people in jail that many of them seem to have become a bit numb to finding people guilty. That is not to say that they are bad people, but it is human nature.

Another problem is this: the judge may be friends with the prosecutor, or be on very familiar terms with him or her. This is especially the case in smaller towns. A small town may only have one judge and one prosecutor. That prosecutor and that judge have likely had friendly chats literally hundreds of times, and may even be friends outside of the courtroom.

However, if any juror knows the prosecutor, chances are that juror will be dismissed from the jury “for cause”.

Also keep this in mind: the judge may know all of your defense attorney's tactics. Anybody who follows sports knows that it is tougher to prepare for a team that is not “in your division”. This is because if a team plays another team a lot, that team gets a good feeling for what that team is likely to do.

A defense attorney may want to make emotional arguments that stir jurors' emotions, and these may include reminding them of how many people died fighting for our freedoms, and so forth. A juror who hears that once in his or her lifetime will likely be far more moved by it than a judge who has heard that argument a hundred times.

The Barons forced King John to sign the Magna Carta about 1000 years ago, and that sacred document gave them the right to juries. King John hated the document, and was going to void it, but died before he could. Our Constitution was modeled after that, and the Supreme Court of this country has referred to it more than 100 times. The keystone of the Magna Carta was the right to a jury trial.

For those reasons, I would say that you nearly always will want to demand a jury trial. And ask the Court if they have any protocol that must be met to keep the jury demand intact. With some courts, if you do not verify the jury within a certain amount of days before the trial, they will “strike” the jury, and give you a bench trial instead.

ABOUT THE AUTHOR: Greg Smith
Attorney Greg Smith is a former prosecutor. He used to work for the other side, so he knows the strategies they will use. He knows how to counter them. We pride ourselves on being able to craft innovative and strong legal strategies to protect people like you from the consequences of a criminal conviction.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.