Lawyers And Legal Advice

Bench Trial Versus Jury Trial



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With a bench trial, a judge makes the ultimate decision. With a jury trial, the jury does. It’s that simple. But if you are trying to decide what’s best for you, there are some things you should consider.

Financial considerations

If you are represented by an attorney and paying for it, a bench trial should be far less costly than a jury trial. Most attorneys charge by the hour for trial work. A bench trial eliminates the need to select a jury, which can be time-consuming.

Attorneys often file motions to suppress evidence they believe was obtained improperly, or to exclude evidence, especially in criminal cases. Regardless of whether you have elected a bench trial or a jury trial, the judge will need to hear evidence and arguments concerning these motions and rule on them. If you have elected a jury trial, the judge will have to consider these motions outside the presence of the jury. This is because evidence that is sought to be suppressed or excluded is often critical to the case, and thus very prejudicial. If the jury hears it and then the judge excludes it, all the judge can do is tell the jury to pretend they didn’t hear it. But as the saying goes, “You can't unring a bell.”

If the judge considers the motions outside the jury’s presence and elects to allow the evidence in, the evidence will have to be presented again in front of the jury. With a bench trial, the judge can hear the motions and associated evidence and decide whether or not to admit the evidence and consider it. The evidence does not have to be presented again if the judge rules in favor of it. This can save a lot of time.

A bench trial also consumes less time because the judge does not have to excuse the jury when there are objections, instruct the jury on issues that arise during the trial, and instruct the jury at the end of the case on the law. Also, with a jury trial, the lawyers have to hang around the courthouse while the jury deliberates in case there are questions or there is a verdict. This can take days. With a bench trial, the judge usually hears the evidence and closing arguments then excuses the attorneys while the judge deliberates and works on a written decision.

Private attorneys generally charge several hundreds of dollars an hour for trial work. The retainer they charged you when they took the case probably only contemplated the costs of going to court a few times until the case got settled. If your case is going to trial and you can’t afford to pay your attorney hundreds of dollars an hour, your attorney will probably be required to represent you anyway.

Just keep this in mind if your attorney recommends a bench trial after you tell him or her you can’t afford to pay trial costs. Most attorneys are ethical and will recommend what is in the best interests of their clients, regardless of whether they are getting paid. And there are strategic considerations that may militate in favor of a bench trial. But unfortunately there are attorneys who may recommend a bench trial because you can’t pay their hourly rate and a bench trial will be quicker. Talk to your attorney. Ask him or her why a bench trial is preferable. They should be able to give you a persuasive reason.

Strategic considerations

Both judges and juries are required to consider the evidence objectively and leave sympathy and emotion behind when they are deliberating. In theory, and probably for the most part, a judge will be able to adhere to this requirement more faithfully than a juror. Judges deal with grieving victims and families every day. What might shock jurors and even bring tears to their eyes is more likely to roll off a judge, not because the judge doesn’t care, but because he or she sees it so much it does not cause an emotional reaction. Jurors are more likely to try to console a victim with a guilty verdict in a close case than a judge.

Conversely, if you are a defendant and you are sympathetic – maybe you helped a terminally ill loved one to end their suffering through suicide – you may want to insist on a jury trial for the same reasons. A judge is required to follow the letter of the law and issue written findings of fact and law to support his or her verdict. A jury just says guilty or not guilty and if it’s the latter, the state has no recourse.

Finally, if you are a defendant and your case is really complicated, to the point where a roomful of people would all have different opinions, you should strongly consider a jury trial. Whether your case is civil or criminal, you can’t lose unless at least a majority of the jurors agree on a verdict. If they can’t, the judge will have to declare a mistrial. The case will start over, but as a practical matter, it will probably be settled in a way much more favorably to you than what was offered before the trial.          

 

More about this author: Lisa Herskowitz

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