Should You Ever Waive Your Right to a Jury Trial?

The 6th Amendment to the U.S. Constitution and Article XII of the Massachusetts Declaration of Rights guarantee everyone charged with a crime the right to a jury trial. A defendant may choose to give up (or “waive”) that right and have his case decided by a judge; this is known as a “bench trial.” Waiving your right to a jury trial is a significant decision. Before you make that choice, consult with an experienced Boston, MA criminal defense attorney. Here are some factors you and your attorney might consider:

12 vs. 1

In a criminal jury trial, the verdict must be unanimous. This means the prosecution bears the heavy burden of convincing 12 people of the defendant’s guilt, beyond a reasonable doubt. In a bench trial, only one person must be persuaded. This is, perhaps, the strongest argument in favor of a jury trial in most cases.

The judge’s record and reputation

Does the judge assigned to the case have a reputation for being pro-defendant or pro-prosecution? Court records will show fewer jury waivers in courtrooms presided over by prosecution-oriented judges.

The nature of the defense

Judges tend to be more receptive to defenses based on legal arguments or lack of adequate evidence of an element of the alleged crime. Jurors, on the other hand, tend to be more sympathetic to defenses that attack the credibility of police officers or are based on arguments of unfairness.

Jury nullification

If your case involves a hot topic that generates strong feelings in certain jurors (e.g., gun possession, gambling), or involves compelling facts that might make you a sympathetic defendant, you will want to try your case before a jury. A judge will likely follow the letter of the law; a jury might choose to essentially nullify the law and acquit.

Excluded evidence

A judge will be aware of inadmissible evidence, but a jury will not. The judge also may know about your prior criminal record (if any) and may have a hard time disregarding it.

Preserving legal issues for appeal

If the case involves a legal issue on which there is a significant opportunity of winning on appeal, a bench trial might be the most effective way to safeguard that issue for appeal. A jury trial can muddy the waters and make it more difficult to maintain a clear trial record.

Sentencing

If conviction is inevitable, it may be best to try the case before a judge. The trial, in such an instance, provides the defendant with the opportunity to place the alleged crime in context and, thereby, hopefully reducing the sentence the judge is likely to impose. Judges tend to punish less severely those defendants convicted by a relatively quick bench trial than those who insist on a more cumbersome and lengthy jury trial.

Contact Boston Criminal Attorney, Kevin J. Mahoney

If you are charged with a crime, you will have many decisions to make as your case winds through the criminal justice system. Your first decision should be to contact an experienced Boston criminal defense attorney. If you would like to talk about your situation and discuss your legal options, call me, at 617-492-0055, to schedule a free on-office consultation.

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Kevin Mahoney

Kevin J. Mahoney is a Boston, Massachusetts criminal defense lawyer recognized nationwide for his high-profile courtroom victories, bestselling book on cross-examination, Relentless Criminal Cross-Examination, novel insights into trial strategy, and numerous television appearances.