When Should a Criminal Defendant Consider Waiving a Jury

It is commonly accepted that the right to a trial by jury is a principal protection afforded a criminal defendant. The right is, of course, enshrined in the Constitution. But it is also widely endorsed by the popular culture. There is no shortage of movies and other entertainment (some good, some middling, although I have always gotten choked up at the end of “12 Angry Men”) that purport to portray a group of citizens gathering to pass final judgment.

So, if a jury trial is such a central right, would a defendant ever wish to substitute the discretion of one judge for the judgment of twelve of his fellows? How would such a decision be reached. The answer is “maybe…sometimes… and very carefully.”

In New Jersey, the right to trial by jury in a criminal case is governed by R. 1:8-1(a) of the Rules Governing the Courts of the State of New Jersey. It provides that the right to trial by jury in criminal cases can be waived if done in writing, on notice to the prosecution with a right to be heard and after approval by the Court. My sense is that there is not a huge variation from state to state.

So what kind of considerations might compel the recomendation of such a waiver? I have encountered three and my list is by no means exhaustive, and they are all terribly case-sensitive.

  1. One, needless to say, turns on the nature of the crime and the defense or the defendant. A particularly violent or unpleasant crime or unsympathetic defendant, coupled with a rather technical or difficult- to -simplify defense might be more suited to a judge than a jury. This is especially true if the defendant needs to testify. A given defendant may be more comfortable talking “one on one” than having fourteen people staring at him or her. It depends on the individual. And if there are certain key facts that need to be put on the record through the testimony of the defendant, a judge might pick them up faster and with less need to explain over and over. Also the prosecution’s cross- examination will likely be less flamboyant and more to the point.
  2. It might be easier to get a defense expert opinion into evidence. I am not talking about an expert that is unqualified or that does not comply with Daubert or other state law, but rather one that is a tiny bit “on the edge.” The same rules of evidence apply in non-jury trials as in jury trials. But it is the application of those rules that tend to have a little more play or flexibility when a jury is not present.
  3. The last is the judge himself. I tend to have strong reactions to the judges I appear before and I think most lawyers can discern relatively quickly the type of man and woman who is on the bench. Some judges would be uniquely ill-suited for a criminal bench trial. Others could be preferable to a jury in some cases. It is all a matter of subjective perception.

But no matter what the lawyer thinks, this is a potentially life-altering decision for any defendant. And it is the defendant who must make the decision and be at peace with it.