"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Friday, September 26, 2008

Jury vs. Bench Trial

A reader has the following query:

There was an article in my home town paper about a year ago on the subject of the disposition of DWI cases. It seems that lawyers who make this sort of work their specialty prefer bench trials for those cases which go to trial. (At one time here in New York, 98% of all indictments were resolved through pleas - don't know the current figure or that for DWI cases). This surprised me as I have been told by other lawyers in general practice (about a decade ago) that your client very seldom benefits from a bench trial. The lawyers interviewed said juries are unpredictable and get sidetracked by irrelevant issues. What do you make of that?
Yes, the age-old question of bench vs. jury trial.

It seems that bench and jury trials have both been in decline in recent years, a fact lamented by the NACDL, an organization of defense attorneys, which sees in the reduction of trials a sinister erosion of trial rights.

As to the specific question, alot of factors play into whether a jury or a bench trial is chosen, assuming the case is one of those relatively few that are actually tried in a contested posture.

Some of the factors:

* which jurisdiction is the case in: The suburban county, where jury pools are more middle class, educated, property owning, and therefore generally less sympathetic to criminals and less suspicious of the police, or the city, where jury pools are younger, less educated, have less of a property stake in the community, tend to be suspicious about the police, and tend to be more tolerant of certain crimes because these crimes are either so common or have been committed by the juror's own family members.

* the nature of the case: Is it a wounding or murder case where there is a strong self-defense claim with a sympathetic defendant and an unsympathetic victim? Even if legally self defense is not technically available, a jury might in effect "nullify" and acquit if they can be convinced that the victim "had it coming to him." Or in the urban jurisdiction, a construction possession of cocaine case might be a good one for a jury, where a judge might easily convict because he's seen a thousand such cases, a jury might well acquit, especially where it is "just a drug case." UPDATE: Injustice Anywhere, back from a blogging hiatus, has an example of a case where she successfully pitched a legal defense to a jury when the judge wouldn't buy it pretrial.

* which judge has the case: Some judges are so lenient or will acquit more readily that it may be a good tactical decision to forego a jury (which is always, always, a roll of the dice) and hope that the lenient judge acquits, and if he doesn't, at least he is a light sentencer. On the other hand, if the judge is a hanging judge and tends to resolve credibility of witness testimony in favor of the government, a jury might be the call where the issue is solely witness credibility, say in an assault case where there are no police witnesses.
From my viewpoint as a prosecutor, I rarely insist on a jury, but in the rare case where a defendant faces alot of very serious charges, the evidence is very strong, and the defendant will not even consider a plea agreement, I have and do take jury trials, with predictable results.

The cases I have where defendants take juries are pretty rare, because usually defendants take juries because the case is unusually weak or circumstantial. But it is just those cases where the incentive to reach a plea agreement is the highest: the government gives up alot on the charges or the sentence imposed, and the defendant gets the assurance of a conviction on some lesser charge or some specific sentence, instead of the risk of a jury finding him guilty of the most serious charges and imposing a heavy sentence (juries determine sentences in Virginia, subject to later reduction by the court).

Bench trials usually occur where the plea agreement process breaks down, yet the defendant does not want to risk a jury conviction and sentence. The reasoning is that a judge who has heard many similar cases, will be lighter on sentencing than a jury would be. In effect, unless there is a compelling defense to the charge, these kind of bench trials are really just "slow guilty pleas" where the defendant wants to hope for the home run of acquittal, but realistically knows he will likely be convicted but will at least convince the judge that the case is not aggravated, or is a close case, and therefore receive a discounted sentence.

These are some of the considerations that attorneys face when deciding whether to seek a bench trial or a jury trial. I know that some defense attorneys could add much more to this list. Ken, for example, has lots to say about this issue, including stories like this one, which illustrates that sometimes a jury can see things that the lawyers overlook. Ken also has posted extensively on his view that jury trials in Virginia are unfair because the juries recommend sentences, usually resulting in much higher sentences than judges give, and judges then are reluctant to reduce jury sentences, and if they do, the final sentence is still usually more than the judge alone would have given.

The specific question of DUI cases is easy: not very good cases for defendants to take a jury, because if there is a technical defense a judge is more likely to buy it; and assuming the police crossed the "t's" and dotted the "i's" there is usually not much of a defense to be had. In Virginia, once you're .08 bac or above, you're presumptively guilty unless you can impeach the intoxilyzer or bring in an expensive expert to explain that it wasn't really booze that caused the reading on the machine. Neither defense is easy and usually neither works. And juries these days are not very forgiving about driving under the influence, so the risk of a high sentence is great.

1 comment:

moeursalen said...

Your article was helpful for an article I wrote for a website:

http://www.associatedcontent.com/article/3002120/bench_trial_means_success_for_robert.html?cat=17

I linked to your blog. Thanks to this, I understand better why the defendants chose a bench trial though I have no clue why the prosecution didn't protest.