Archives : 2009 : June

Criminal Procedure: Jury Trial vs. Bench Trial

By: Vince Imhoff, Attorney at Law and Ariella Rosenberg

It is common knowledge that defendants in the United States have the right to a trial by jury, as is clearly stated in the Sixth Amendment of the United States Constitution: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. However, what many defendants dont realize is that there is the possibility of waiving the right to a jury and having a trial that is only before a judge. Although perhaps not intuitive, this type of trial, known as a bench trial, can in some situations be preferable to a trial by jury.

In July of 2005, Richard Hawkins, a former executive facing fraud charges in San Francisco, saw the benefits of waiving his right to a jury when U.S. District Judge Martin Jenkins acquitted him of all charges. Amid the growing public resentment of white-collar criminals, Mr. Hawkins may not have fared so well had he been tried by a jury of his peers.

What is a Bench Trial?

A bench trial is a trial before a judge instead of an entire jury. The general provisions for a trial by bench are laid out in the Federal Rules of Criminal Procedure: In a case tried without a jury, the court must find the defendant guilty or not guilty. If a party requests before the finding of guilty or not guilty, the court must state its specific findings of fact in open court or in a written decision or opinion. (Fed. R. Crim. P. 23(c)). In a bench trial, a judge must determine all questions of law and be the trier of fact, whereas in a jury trial the judge is responsible for questions of law and the jury is the trier of fact.

In general, bench trials are governed by the same rules as jury trialsthe rules of evidence and procedural methods are the same in both. Specific procedure is determined by the applicable state code. New York State Consolidated Law specifies, for example: The provisions governing motion practice and general procedure with respect to a jury trial are, wherever appropriate, applicable to a non-jury trial. (N.Y.C.L. 320.10).

Despite similar procedural guidelines, however, bench trials are often less formal that jury trials. For example, the court may allow the admission of provisional evidence in a bench trial, as this evidence could always be struck in the future without fear of misleading a jury. Additionally, bench trials can often be faster than jury trials, as time is not spent selecting, sequestering, and instructing a jury.

Who Is Eligible for Bench Trials?

Under the rules of Federal Criminal Procedure: If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves. (Fed. R. Crim. P. 23(b)). Although this is the general rule, specific criminal procedure varies by state. In New York, for instance, Except where the indictment charges the crime of murder in the first degree, the defendant may at any time before trial waive a jury trial. (N.Y.C.L. 320.10).

Even if a defendant is eligible for a bench trial, it is important to recognize that both the defendant and the prosecution have the right to present the case to a jury . Therefore, the prosecutor assigned to the case must approve the waiver of the jury trial. Thus, a defendant going before a judge who is known to be more likely to acquit may not receive the prosecutions approval of a bench trial, if the prosecution thinks that the judge would be inclined to rule in a defendants favor.

Finally, it should be noted that in certain situations, such where the charge is for a petty offense (such as an infraction in California, or any crime where the maximum sentence is less than six months in a federal prosecution), or the defendant is a juvenile, the right to a trial by jury may not apply, and the defendant will be subject to a mandatory bench trial. Persons accused of violating probation in most jurisdictions are entitled only to a court trial. In the event that the probation violation is also charged as a new criminal offense, the court may, on the prosecutors motion, simultaneously hear a bench trial on the probation violation while the jury hears the evidence and delivers a verdict on the new charge. Thus, even if the jury acquits the defendant of the charge, the judge may be convinced that the defendant violated her probation, and impose punishment for that violation. In general, however, defendants charged with offenses for which they face significant jail or prison time may have the opportunity to choose whether or not to waive the right to be tried before a jury, making it important to seek the advice of a trained, legal professional when considering ones options.

What Are the Advantages/Disadvantages of Bench Trials?

An experienced attorney will weigh the pros and cons of a trial by bench with a client to determine if this type of trial would be to a clients advantage. Generally, defense attorneys view juries as the safer option. This is in part due to the fact in the event the jury cannot reach a verdict, the defendant may be let free, or offered a highly advantageous plea bargain if the prosecutor does not wish to retry the case, and at the very least, will have a chance to fight the case again. Out of a jury of 12, it is more likely to find at least one sympathetic ear than when going before a single judge. Furthermore, unlike judges, jurors do not see hundreds of identical cases in any given year and are may be more sensitive to the particular circumstances of a defendants case than a judge might be. In some jurisdictions and in some cases, however, a jury may be composed of less than 12 people, and not all jurisdictions require a unanimous verdict from a jury. For example, Colorados Constitution, Article 2, Section 23, provides that The right of trial by jury shall remain inviolate in criminal cases; but in criminal cases in courts not of record, may consist of less than twelve persons, as may be prescribed by law. Floridas Rules of Criminal Procedure only guarantee a 12-member jury in capital casesother cases may have as few as six jurors

In certain instances, however, a bench trial could prove to be to a defendants advantage. This type of situation might arise if the legal question in the case is based on technical arguments requiring the type of legal distinctions that only a judge is likely to understand. Also, a defendant who faces a weak case, but has an extensive prior record, may fear that if he testifies, a jury would tune out the facts of the case and focus on the prior record.

In some jurisdictions, bench trials are common, and judges appear more willing to truly weigh the evidence and acquit a defendant in the event the prosecutor cannot prove the case beyond a reasonable doubt. In other jurisdictions, bench trials are quite rare, and it is possible that judges are not entirely used to the ramifications of acquitting a defendant. In the local slang of some courthouses, a bench trial is known as a slow plea, meaning that the local culture understands that the purpose of a bench trial is to find the defendant guilty, and present details of the case to the judge for purposes of sentencing. In such a jurisdiction, a defendant who believes in her innocence would be ill-advised to waive a jury.

Even if you ultimately choose the more common option of invoking your right to trial by jury, it is important to know your right to request that the prosecution consent to a trial by bench, and to work with an attorney who can advise you on the nuances of your particular situation to ensure the best possible outcome.

Finally! Fair Sentencing For All Cocaine Offenders Regardless of Race

On April 29 th 2009, Assistant U.S. Attorney General, Lanny Breur announced that the DOJ and its administration support ending the 100:1 sentencing disparity between crack and powder cocaine thus equalizing the sentencing regimes.

Current Sentencing for Cocaine Crimes

Currently, the sentencing guidelines for Federal drug charges such as possession of cocaine for sale is based on the weight of the controlled substance. For more than 20 years, as an example: possession of 5 grams of crack would earn the same mandatory 5 year sentence as possession of 500 grams of powder cocaine.

The inherent flaw in this type of sentencing is that is has long been established that among the poorer African American drug offenders crack cocaine is often the drug of choice over powder cocaine. Much of this is due to the unavailability of powder cocaine in the poorer neighborhoods. This sentencing guideline in effect has made “possession of cocaine” by many African Americans hold a significantly longer prison sentence than that of others who simple possess powder cocaine.

Push To End Cocaine Sentencing Disparity

The National Association of Criminal Defense Lawyers has urged Congress to adjust the federal sentencing guidelines to match the current position taken by the Obama administration and the Department of Justice in order to completely end the disparity in sentencing between crack and powder cocaine offenses.

Charged with a Cocaine Crime?

At Imhoff & Associates we have a proven record of helping our clients achieve superior case results through our outstanding trial work as well as our commitment to keeping up to date on the most current changes is our legal system. Staying on top of an ever changing legal system gives our clients advantages many other firms may have missed.

Call 800-887-0000, or contact a criminal attorney for a free consultation.

Can The Police Search My Car Without A Warrant?

On April 21 st, 2009, the U.S. Supreme Court held that police may search the passenger compartment of a car only when the occupant is arrested and it is reasonable to believe that the arrestee might access the vehicle after his arrest or that the passenger compartment contains evidence of a crime.

Free from Unreasonable Searches?

For over 25 years citizens have felt like they have given up the right to be free from unreasonable searches simply because they happen to be on a public road or a passenger in a motor vehicle. This feeling was based on old case law allowing police to search a car incident to a lawful arrest (New York v. Belton, 1981). This sometimes included arrests for traffic offenses and outstanding traffic warrants.

In Arizona v. Gant, the U.S. Supreme Court agreed with the Arizona state supreme court who threw out a drug conviction in the case of an individual who was arrested for driving on a suspended driver’s license. Gant was handcuffed and placed in the backseat of a police car. The police proceeded to search his vehicle and found cocaine in a jacket pocket in the back seat.

The police had Gant in custody in a police car. This would have prevented him from accessing anything inside of his vehicle (no officer safety issue at this point) and searching the car was not going to prevent him from destroying any evidence in support of his arrest for driving on a suspended driver’s license (there wouldn’t have been any).

Criminal Cases May Be Dismissed Due to Unreasonable Searches

State courts have treated the authority and justification to search citizens and their cars incident to arrest of the recent occupant as a police entitlement rather than applying the exclusionary rules to determine the searches validity. By using the latest U.S. Supreme Court decision to test these types of searches, many pending criminal cases that were born of “police entitlement” may end up being dismissed because the evidence obtained may be thrown out.

Contact a Criminal Attorney at Imhoff & Associates

Our highly skilled attorneys will fight to protect your rights. Understanding and using the latest case law in your defense can mean the difference between getting your case dismissed and spending years in prison.

Call 800-887-0000 for a free consultation.