Judge … or Jury?

Most people know that if you are charged with a crime, you have a constitutional right to a trial by jury. Even if the charge is a petty misdemeanor (shoplifting $5 worth of candy), as an American, you have the right to be judged by a “jury of your peers.” (As for the definition of “peers” — that’s a subject for another day!)

But as the defendant, you have another choice: waiving your right to a trial by jury and instead choosing to have a “bench trial” — letting the case be decided by a single judge. Thanks to Hollywood, many people are unaware of this option.

The suspenseful TV courtroom drama, with the prosecution and the defense (and us) waiting with baited breath for the jury to reach their verdict, is almost a cliché. And most of the time, the “good guys” win and the bad guys lose.

However, in real life, juries often reach surprising verdicts, convicting someone we believed to be wrongly accused, or acquitting a defendant who seems undeniably guilty (O.J. comes to mind). There simply are no guarantees in a courtroom, especially when it comes to juries.

In a typical jury trial, the prosecuting attorney and the defense lawyers each make their case. The judge acts as an umpire, making sure that neither side steps outside the bounds of law and procedure. The jury makes the final determination as to whether they find you “guilty” or “not guilty.” (Note: contrary to misleading TV and movie dialogue, there is no finding of “innocent” in American law.)

Top-notch attorneys (whether prosecutors or defense lawyers) understand jury psychology and how jurors are likely to react to the specific elements of your case — especially elements that are likely to elicit high emotion. Some cases are likely to play well with a jury. Others are not.

OK, so when should you consider a bench trial? After all, you will be putting “all your eggs in one basket” — being judged by one man or woman instead of twelve. Many factors will be involved. But one thing is certain; you absolutely must have the advice and counsel of a competent attorney.

For example, suppose the attacker you killed was very young, and the gun he used to threaten you turned out to be a replica firearm. You didn’t know, but the jurors do, and even if told to disregard this “hindsight” knowledge, they often can’t escape the feeling that “he didn’t deserve to die; he couldn’t have hurt anyone.”

However, a judge is more conditioned to remain dispassionate than a jury. Why? For a jury, this is likely a once-in-a-lifetime event. Judges, on the other hand, have likely sat through dozens, maybe even hundreds, of such cases and, as a result, are less likely to be moved by emotional elements. Or at least they should be.

Good attorneys know the judges in their district. This is critical, because judges vary dramatically in their views on a whole host of legal issues, including guns. Savvy lawyers know which judges are reliably good on self-defense and which are not.

There is no simple answer to the “judge-or-jury” question. Every case is unique. Whether you wind up opting for a jury trial or a bench trial will depend on all of the elements of the case. There are pros and cons to either route. The best you can do is to retain a good attorney. Then listen to him or her.