Wednesday, December 9, 2009

Bench Trials: Why?

In Illinois every criminal defendant has the right to a trial by jury. Even those accused of the most minor misdemeanor (Class C) has the right to a jury trial.

The right to a trial is pretty holy in Illinois. All defendants who plead guilty must sign a jury waiver. The defendant is also advised of his or her right to a trial numerous times. The defendant must acknowledge on the record their right to a trial is understood and also that this right is being waived voluntarily. We attorneys cannot waive the right to trial for our client.

The defendant has the right to a jury trial but may choose a bench trial instead. In a bench trial the judge is the finder of fact and he or she alone determines guilt.

For obvious reasons bench trials are much faster. There is no jury to pick. Opening statements and closing arguments are minimized. There are no sidebars. And any evidentiary matters can be worked out immediately without having to remove the jury.

Misdemeanor trials are rare. Misdemeanor jury trials are even rarer. Most misdemeanor trials are bench trials. And oddly enough, most felony trials are bench trials too. I don't have numbers, but from my observations here in Cook County, I see many, many more cases being set for bench trial than jury trial. And I can't figure out why.

Felony trials are scattered. Felony jury trials are widely scattered. Most assistant state's attorneys, in my opinion, do not like jury trials. Whenever I start talking about a jury trial I get a variety of looks and none of them are pleasant.

People that are overworked typically don't want more work piled on them. And that's just what a jury trial is. It's more work. The assistant state's attorneys have to actually prepare for it. Not that they don't prepare for a bench trial, but a jury trial is without a doubt more work. A jury trial also moves them out of their comfort zone. They are in the same courtroom everyday. They know the judge. The judge knows the prosecutors. There are boundaries and understandings that I will never know.

I am not implying the State has home court advantage in a bench trial. The judge should apply the law equally across the board. And I think they probably do. But at the very least the prosecutors are comfortable. I am an outsider and to me it's just another courtroom. To the prosecutor, it's their office. Hmmm.

But pick 12 people and put them in the jury box. The calculus has now changed dramatically. The State now has to prove its case to 12 strangers as opposed to a judge they work in front of every day. 12 people that won't be as familiar with criminal evidence as a judge, thus raising the difficulty level.

Would you rather compel the State to prove guilt beyond a reasonable doubt to 1 familiar judge, or 12 strangers...unanimously. 1 or 12? I am leaning towards 12. If the State brings the charges they must be prepared to try the case in front of a jury. Period. And they shouldn't act offended if a jury trial is demanded. That right is in both the Federal and State constitutions.

The framers adopted the jury system, in part, because back in England guilt or innocence was determined by a sometimes tyrannical king or some other royal. In other words, the system wasn't close to being fair. By taking the power to determine guilt from an executive body and placing it in the hands of the defendant's peers, the framers aimed to even things up. And they did. Well, mostly.

Sometimes I think a bench trial makes sense. If you have a case where the evidence is so completely shocking and horrible, it might be best to remove the emotional element from the case. Jurors are people. We naturally want someone to pay for their crimes. And the worse the case the more we want to punish someone. Therefore, putting such a case before a judge might allow the shock factor to be diminished. Shock factor is a very strong force. Watch the news.

The other major issue I have with bench trials is evidence. In a jury trial only admissible evidence is presented to the jury. What makes evidence admissible is complicated. But the basic premise is that it must be relevant and it's probative value must outweigh any prejudicial effect.

If there is a dispute over the admissibility of evidence between the State and the defense, the judge makes a ruling. It's either in, or it's out. But either way the judge sees or hears the evidence. In a jury trial there's no harm as long as the jury isn't presented with improper evidence. But in a bench trial the judge sees it all, admissible or not.

A judge conducting a bench trial is to consider only properly admitted evidence when rendering a verdict. This proposition looks good in writing, but in practice does it really work?

An often fought area of evidence is the criminal record of the accused. When the case is assigned to the courtroom for arraignment, the judge does not (or is not supposed to) know anything about the defendant's background. However, if the charge is being a felon in possession of a firearm, the judge knows the defendant has at least one felony conviction. That's easy.

The rules for admitting the criminal background of an accused are very complicated, but typically prior convictions are inadmissible unless the defendant chooses to testify. There are exceptions, however but the prior statement is generally true.

If for some reason the State wanted to introduce a prior conviction there would be a hearing before trial and a ruling by the judge. Now the judge knows everything. If the prior conviction doesn't come in and it's a jury trial, no harm no foul. The jury won't hear about it and thus not be potentially prejudiced.

But if it's a bench trial the judge heard it and can't un-hear it. I think judges are very smart people and in my jurisdiction they are fair. But judges are humans. I don't know how one can keep track of what's admissible versus what's not. And on top of that, reach a verdict based only on the admissible evidence. How is that kept straight in the brain? How do you eject one fact and accept another one?

Many old school trial lawyers I know from around the courthouses have said a bench trial is the short route to a guilty verdict. Maybe I missed the memo but for most cases, I just don't see a bench trial as an option.

Give me 12 in the box and let me speak directly to them at the beginning and at the end. Curiously, only in a jury trial am I allowed to speak in court like a non-lawyer. When there is no jury, we attorneys and judges speak in legalese and it's all very formal. We use words and phrases like "expectation of privacy", "due process", and "discovery".

Although my jury trial career has just begun, I find myself very comfortable in front of a jury. It's almost like I am telling a group of friends a story. I could never have that level of comfort speaking to a judge. You must show respect to a judge and it's not proper to speak to one like a buddy. In fact, it would be highly insulting. I could never do it. In court I act like I did when I was in the Army and was around a high ranking officer, such as a colonel. Stand at attention, speak clearly and loudly, and don't speak too much.

But in front of a jury I can be me. I can speak like a regular person and maybe I can even be liked, perhaps mildly charming on a really good day. In front of a jury I can walk around, put my hand in my pocket, use my arms to emphasize points and so forth. You can't do that while speaking to a judge. It's disrespectful and would look utterly weird, if nothing else.

A jury is also sitting at about the same level as I am, while a judge is high on the bench. I can look jurors right in the eyes, but have to gaze up at a judge. And judges rarely look me in the eyes. In fact, it's so rare I notice it when they do because it's not normal. The judge sits high for a reason and it's not for the comfort of attorneys. The high seating evokes authority and power. It's the judge's courtroom. It's the judge's rules. The judge is king or queen of their courtroom.

Put me in front of just a judge and the mojo is gone. I find it very difficult to project persuasive charisma through the formality of addressing a judge. Actually I find it impossible. Perhaps it's an acquired skill, but I doubt it. After all, it wasn't on the BAR exam.

I am now back to the point of this post. Why do a bench trial? I just don't get it.



  1. Very well put, in my opinion I think it depends on the severity of the case, the judge assigned to the case and the complexity of the charges. I.E. it's just that much harder to make a jury understand murder by theory of accountability especially when the evidence is circumstantial. Your everyday person is not able to interpret the laws and believe guilty by association,,right.(Rhetorical) However there are judges who just out to railroad a defendant just as there are jurist who have the same intentions. Tough call...

  2. Iwonder if you still see very few jury trials there. They are very, very common in Nw fl where I practice. I have had about 45 trials and two judge trials. Have had no felony bench trials.I think it foolish except under v special circumstances, like maybe a trial for a crime allegedly committed by a prisoner. I fear the lack of jury trials is due to the pressure exerted by the state / bench partnership against the defense bar. I hope you continue to change throw tide and keep jury trials alive in Chicago.


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