Bench Or Jury?

[Good Ol' Boy]

I just recently became familiar with the term bench trial. Yes, in 33yrs I was unaware there was such a thing as a trial without a jury.

So, this thread is not about any specific law per say but I feel is "law related". Although I'm hunting for opinions they are not opinions on the law itself but opinions on which avenue one might take through the law as it is, so I really hope this doesn't get closed.

What we're referring to here is a scenario in which you have been in a SD situation that you feel is justified. Which type of trial (assuming it made it to that) would you want?


I feel like this could be a good discussion with input from some of our experienced legal folks...

 

[Girodin]

Generally defendants prefer to have a jury trial. It is a lot easier to confuse or mislead a jury than a law trained judge. With bench trials it depends a lot on the judge. I've seen certain judges acquit on cases that I'm pretty sure other judges would have convicted on. Some judges are seen as being more pro defense or pro prosecution generally. Some judges have certain issues they seem to have particular feelings on. Generally a judge might be preferred if one had a more technical legal argument. There are too many factors to say one way or another in every case but you'll note most of the high profile cases go to a jury. One other thing with a jury is the decision must be unanimous so all you need to avoid conviction is to get one juror.

 

[Archie]

If one's defense is legal and based on questions of law, AND one doesn't have any residual doubts about the legality of the matter, one thinks a bench - judge only - trial would be a good idea. If the indictment is moved by public outrage and emotional reaction, bench trial. (District Attorneys are not always moved by public opinion and screaming headlines, but we've seen such incidents in the past - uh - several years.

And of course it depends on the presiding judge. If His Honor is a leftist activist and feels criminals are all excused due to societal misconduct, that may not be such a good idea. Go for 'change of venue'.

 

[Jim Watson]

One of the six cops accused in the Freddie Gray case was acquitted in a bench trial. The next go round will also be a bench trial. The one jury trial was a hung jury, to be retried.
The olé rule of thumb was to argue the facts to a jury, argue the law to a judge, whichever way your best defense was.

Maybe Frank will comment.

 

[hdwhit]

While I'm sure the attorneys will be along to provide a more complete answer, I don't think there's a simple answer to the question.

The decision to ask for a bench trial versus a jury trial will need to be based on the particular facts and circumstances of the case and will need to be carefully weighted by an experienced attorney who can explain the risks.

 

[Frank Ettin]

While I'm sure the attorneys will be along to provide a more complete answer, I don't think there's a simple answer to the question.

The decision to ask for a bench trial versus a jury trial will need to be based on the particular facts and circumstances of the case and will need to be carefully weighted by an experienced attorney who can explain the risks.

That's pretty much it. It's a decision which must be made on a case-by-case basis and will be driven by factors unique to your particular situation.

Here are a few articles discussing some of the factors that go into making the choice:

• "What is the bench trial process?"
  
  
• "What is the Difference Between a Bench Trial and a Jury Trial?"
  
  
• "Advice for choosing trial by judge or jury"
  
  
• "Judges vs. Juries"
  
  
• "Judge versus Jury Trials"

 

[Twiki357]

IMO it also depends on your attorney and how familiar he/she is with the presiding judge. In a self-defense situation, I certainly would not want a bench trial if my attorney knew the judge was anti-gun. But I would probably go that route if he/she was pro2A and right of self-defense. It all depends on the knowledge of your attorney.

 

[Frank Ettin]

IMO....

On what do you base your opinion? Any relevant experience? Have you studied the subject? Do you have any data?

I posted links to five articles on the subject written by people with relevant experience and education. Those opinions are based on knowledge of the subject matter.

Of course if a judge is openly antagonistic to the private ownership of firearms or to self defense, you wouldn't want him to try the case. It in a self defense case a defendant draws such a judge, the first thing a good defense lawyer will be looking at is procedures in the jurisdiction for challenging a judge.

 

[TimSr]

I just recently became familiar with the term bench trial. Yes, in 33yrs I was unaware there was such a thing as a trial without a jury.

You'll find that most minor offenses, and traffic court cases automatically go to a bench trial format unless the defendant specifically requests a jury trial.

The theory is that a judge is more likely to only consider the facts of the case, and rule based on the law as it is written.

Even though juries are instructed to do the same, juries are much more likely to have their judgment affected by sympathy, emotion, their own morality, and a sense of what the law should be as opposed to what it is.

I would want a bench trial if I felt I was within the law, but my actions would be viewed as unpopular, or if a relatively minor offense resulted in a very serious tragedy. Say I shot a home intruder at night, tuned on the lights, and it turned out to be a 10 year old child.

I would want a jury trial if I had done something wrong, but believed "my peers" would see it as justified, or felt that the politics of the situation were sympathetic to my case. Say I beat a man who I caught molesting my child, and he died as a result of the beating.

When you have a prosecutor publicly catering to an angry mob for political reasons, your changes are better with an objective judge than a jury picked from the angry mob.

 

[MedWheeler]

TimSr writes

When you have a prosecutor publicly catering to an angry mob for political reasons, your changes are better with an objective judge than with a jury picked from the angry mob.

That's signature material there.

 

[Girodin]

On what do you base your opinion? Any relevant experience? Have you studied the subject? Do you have any data?

I'd agree generally with what he said. I have seen the judge was make all the difference in the world in a bench trial. My relevant experience? Literally hundreds of trials, including many cases (admittedly not shootings, some stabbings) that involve self defense claims and use of force issues. I was contacted for consulting on a high profile CCW self defense shooting case.

To use a non firearm related example, I remember discussing an animal abuse case with opposing counsel. This person believed they had a strong legal argument as to why the conduct did not violate the statute. I simply told them if they wanted a trial in front of the biggest animal lover I knew on an animal abuse case to be my guest. After counsel spoke to another attorney familiar with that judge the case was resolved and I got exactly what I wanted. If one has much courtroom experience one knows there are certain issues or arguments that will go certain ways in front of certain judges. I have seen juries acquit on cases a judge never would. I have had jurors say they knew a person was guilty but acquitted anyways.

I think most of the generalities expressed in this thread are generally true.

Since we care calling people out, what is your relevant experience. How many criminal cases have you tried before a jury? How many self defense cases have you tried. How do you know those links have good info? How does it track with your experience?

 

[Frank Ettin]

...what is your relevant experience.....

Perhaps you didn't notice, but I'm not claiming to be relying on my experience. See post 6.

 

[Good Ol' Boy]

As usual Frank your thoughts are welcomed. Thanks for the reading material.


Tim, that is kind of what I was thinking as well.

 

[Girodin]

I did notice. I just thought we should make that a little more express, lest anyone else not notice. You did post links and it is fair to ask your experience to know whether they contain good information . Is it not? One is academic but others are in essence just "call us" type articles typical of attorney websites And since you felt comfortable asking someone else about their experience I don't believe it was out of line to ask for yours. Does your author know what he is talking about? One of them graduated from a 4th tier law school and there are a few other eyebrow raisers in his profile. Maybe he is great, I don't know. The more scholarly article is interesting and tracks generally with my experience.

The reality is that if one is charged after a shooting, he or she desperately needs counsel and one will hopefully retain counsel that is competent to address this issue. I would contend that getting the right counsel is pretty important in a number of ways many people likely do not consider.

There is a world of difference between an attorney and a criminal law attorney (I've seen some attorneys who attempted to take on criminal cases achieve notably worse outcomes for their clients than the client likely would have obtained his or her self). There is even a world of difference between an attorney practicing criminal law and a trial attorney. I have gone years without seeing certain criminal law attorneys that I know actually try a case. Some of them are pretty prominent names, and on the defense side some of them charge some pretty crazy fees to in essence just help people accept the prosecutor's offer and plead guilty.

 

[Twiki357]

On what do you base your opinion? Any relevant experience? Have you studied the subject? Do you have any data?

Frank,
I base my [opinion] on my observations and experience from sitting on many juries and observing the conduct and reactions of the various judges, especially toward the attorneys. Also, not gun related, but on my divorce. I have no idea where my ex found her attorney, but I found out afterwords that my attorney was the judges’ tennis partner. Care to guess how that went?

 

[TimSr]

Also, not gun related, but on my divorce. I have no idea where my ex found her attorney, but I found out afterwords that my attorney was the judges’ tennis partner. Care to guess how that went?

I don't know about big cities, but with small towns, and county court systems, it's so common it's sickening, and if your attorney is from out of town, he will be the only outsider, in a game of insiders. It's not uncommon to see attorney's from both sides, and the presiding judge having breakfast at the same table before the upcoming case. When you are going to court and see your attorney yukking it up with the prosecutor at Denny's it sure has a psychological effect, even if it doesn't affect their ethics!

 

[GreyOne]

Having spent a decade or more as a bailiff in County and District courts, I will offer this:

If I ever have a serious case to defend I will want a GOOD local criminal defense attorney who knows the judge and can advise on whether it is safer to go to a jury trial or go for a bench trial. Since the facts of each case are different, and since both Judges and jury pools are different, there is no single answer to what will work. With your personal freedom on the line, paying for good advise- and seriously listening to it- just seems like common sense.

 

[JTHunter]

In Illinois, if a person desires a jury trial for a non-criminal case, they are told they have to pay for it UP FRONT.

 

[old lady new shooter]

In Illinois, if a person desires a jury trial for a non-criminal case, they are told they have to pay for it UP FRONT.

Isn't a self-defense case a criminal case (since the person admitted to homicide and the case is only about whether it was justified)?

 

[Kleanbore]

Isn't a self-defense case a criminal case (since the person admitted to homicide and the case is only about whether it was justified)?

Don't forget the possibility of a lawsuit.

 

[lemaymiami]

Being a retired cop (and someone who hopes to stay out of any kind of courtroom for the rest of his life....) I have a bit different point of view. If I were a young officer in Baltimore the last thing I'd want in this current environment is a jury trial. Watching just the info available through ordinary media channels I was greatly saddened at how badly the power structure in that city handled their crisis...

If I were in any kind of shooting situation (whether as a cop or an ordinary citizen) where there was the slightest chance of a prosecution I'd want an experienced defense attorney - not only skilled in law - but well experienced in whatever jurisdiction the matter would be brought to... Yes, there's more than one kind of justice -but a solid working knowledge of both the law and the local system is the best I could hope for. I'd give great weight to that lawyer's advice and only go against it if I felt it was absolutely necessary.

As I've already stated - I'd like to stay out of any kind of courtroom if at all possible. In 22 years as a cop I was in and out of courtrooms all the time (until I made mid management - at that point the only way you're in court is likely to have a very bad outcome...). In the years before I left the street I occasionally saw justice in a courtroom (at least once or twice...) but it was purely incidental to everything else going on....