As a best federal lawyer, I am often asked to talk on the choice of a bench trial versus a jury trial. As an initial matter, in any felony criminal case, at either the Federal or State level, a defendant has the absolute right to elect to take his case to a jury trial. However, in Federal courts, a defendant’s right to a bench trial, in the other hand is not absolute. Only if both the Government and the Judge agree, is the defendant facing Federal criminal charges entitled to a bench trial. That is why bench trials in Federal criminal trials are a somewhat rare occurrence. At the State court level, bench trials are more more commonplace, and in most States – including in Illinois – a defendant has an absolute right to request a bench trial, regardless of the position on that matter by the prosecution or the court. The decision to take a bench trial is often a difficult one to make. Generally, if the Judge is one who has a reputation or track record of being fair and/or favorable to defendants, then the choice is made much easier. In addition, in many jurisdictions the choice to take a bench trial is often driven by the calculation that a case is weak and accordingly that a Judge would have much less difficulty – as opposed to a jury – in finding that the Government has failed to meet its burden of proof beyond a reasonable doubt. Indeed, defense counsel may believe that he or she has a strong likelihood of getting the Judge to grant a directed verdict after the State closes its case.
Finally, there are cases that are of such a nuanced or technical nature that defense counsel may conclude that he or she would have a far better chance of the Judge understanding the issue and ruling in favor of the defendant. Of course, the reality is that Judges are people too, and are often shaped and influence by their own backgrounds and experiences. This way result in a pattern of history of decisions and rulings that are decidedly pro-prosecution – even if not consciously or intentionally so. It is difficult to try a case in which defense counsel and his client feels as if the Judge is part of the prosecution team. In sum, the decision to elect to take a bench is often a difficult one. Putting one’s future in the hands of one person, or in the hands of twelve unknowns, can be daunting. A defendant who is charged with a felony crime should take this decision seriously, and retain and discuss it with highly experienced defense counsel who have not only a track record of trying felony ashes to verdict – but winning them.
Michael Leonard
Leonard Trial Lawyers
October 12, 2023