Jury Trial or Judge “Bench” Trial – A Critical Decision

Court Sketch The decision to waive or demand your right to a jury trial in a criminal case is so important that in some states, such as Pennsylvania, the law requires you answer the carefully worded questions in writing before giving up the right.

The Pennsylvania jury waiver form itself is interesting and very instructive on the decision so I include it here.

Waiver of Jury Trial: Defendant

In the Court of Common Pleas of Delaware County, Pennsylvania.

Criminal Waiver of Jury Trial: Defendant. Commonwealth of Pennsylvania : No. _ vs. _

I. Ability to Understand
  1. I am the defendant in this case and I am _ years old. I have gone to school for _ years. I can read, write, speak and understand the English language.
  2. I do not have any physical, emotional or mental problems which affect my ability to understand what I am doing today, the rights which I have and the rights which I am giving up by waiving a jury trial. I am not now under the influence of any narcotics, drugs, alcohol or any other substance.
II. Contact With Attorney
  1. I have fully discussed this Waiver with my lawyer, who has advised me of the penalties for the crimes charged.
III. Right to Trial by Jury
  1. I understand and my lawyer has explained to me that if I plead not guilty, I have a right to have a trial before a Judge and Jury, or I may ask that my trial be before a Judge alone who will decide my case.
IV. Trial by Jury

I understand and my lawyer has explained to me that if I plead not guilty and choose to have a trial before a Judge and Jury:

  1. I have the right to challenge the manner in which people are selected for jury service in Delaware County or any other County from which jurors will be selected in my case.
  2. The Jury would consist of twelve (12) people who live in Delaware County or upon cause shown by me, some other County in Pennsylvania.
  3. I have the right to take part in selecting the jury who would hear my case and I have the right to have questions asked of the people who may be jurors in my case to test the qualifications of those people to be jurors and to insure that the jurors selected would be fair, just and impartial.
  4. I can prevent an unlimited number of people from being jurors in my case if I can show that he/she is not qualified to be a juror or would not be fair, just and impartial.
  5. I can prevent a limited number of people from being jurors in my case without giving any reason at all, so long as I am not excluding jurors on account of their race, gender or for any other illegal reason.
  6. The Judge would rule on issues of law and instruct the jury on the applicable law, but the jury would decide what the true facts are and whether the Commonwealth has proven that I am guilty of the crimes charged beyond a reasonable doubt.
  7. In order for me to be found guilty of the crimes with which I am charged, the verdict of the Jury would have to be unanimous, that is, all twelve (12) Jurors must agree that the Commonwealth has proven that I am guilty of the crimes charged beyond a reasonable doubt.
V. Trial by JudgE

I understand and my lawyer has explained to me that if I plead not guilty and I am tried before a Judge alone without a Jury:

  1. The Judge would rule on issues of law and decide what law applies to my case and what the true facts are in this case and whether the Commonwealth has proven that I am guilty of the crimes charged beyond a reasonable doubt.
  2. I have not been pressured, forced or threatened in any way by anyone to give up my right to a jury trial and I have not been promised anything in return for giving up my right to a jury trial.
  3. I have had enough time to fully discuss my case, everything contained in this Waiver of Jury Trial form and my decision with my lawyer, and I give up my right to a jury trial and choose to be tried before a Judge alone without a Jury.

By placing my initials on all of the lines provided, I am saying that I understand, agree with, and have answered truthfully everything contained in this Waiver of Jury Trial form.

Defendant Attorney for Defendant Date Statement of Defendant’s Attorney

I affirm that to my knowledge, the Defendant is not now suffering from any physical, emotional or mental problems which affect his/her ability to understand everything which has been said, read and done concerning this waiver nor is the defendant now under the influence of any narcotics, drugs, alcohol or any other substance. I have fully advised the defendant of the content and meaning of this Waiver of Jury Trial form and the defendant knows what he/she is doing in waiving a jury trial. We have fully discussed the defendant’s decision, and I am satisfied that the defendant’s waiver is knowing, voluntary and intelligent.

Attorney for Defendant Waiver of Jury Trial: Commonwealth of Pennsylvania

The Commonwealth of Pennsylvania waives its right to a jury trial in the above-captioned case.

Attorney for Commonwealth Date

Approved: Judge Date.

While I have written in the past on the right to a speedy trial under Colorado Law I have not addressed the decision to demand or to waive a jury trial.

The decision to go to trial and reject all plea bargains is difficult but having made that decision, the next decision choosing between a judge or a jury trial may make the difference between a guilty and a not guilty verdict.

Do not make this decision lightly and never wait until the last minute to decide between the two options as your options, while limited to the two choices, may impact your so drastically that it may be the single most important pre-trial issue you decide important issue. Much time and thought needs to go into the decision making process.

First and Foremost. The Right to WAIVE (Give up a Right) to a Jury Trial is not Absolute

In Colorado, even if you decide to waive your right to a jury trial for many of the reasons found below, the District Attorney has the right to stop the waiver and insist that a case go to a jury. Here is the law:

§ 16-10-101. Jury Trials Statement of Policy

The right of a person who is accused of an offense other than a noncriminal traffic infraction or offense, or other than a municipal charter, municipal ordinance, or county ordinance violation as provided in section 16-10-109(1), to have a trial by jury is inviolate and a matter of substantive due process of law as distinguished from one of “practice and procedure”.

The people shall also have the right to refuse to consent to a waiver of a trial or sentencing determination by jury in all cases in which the accused has the right to request a trial or sentencing determination by jury.

When Does The Right “Attach?” the Law

The right to a jury trial in Colorado is “codified” (reduced to a written statute law) in Section 18-1-406 CRS:

§ 18-1-406. Right to Jury Trial
  1. Except as otherwise provided in subsection (7) of this section, every person accused of a felony has the right to be tried by a jury of twelve whose verdict shall be unanimous. In matters involving misdemeanors, the accused is entitled to be tried by a jury of six. In matters involving “petty offenses”, the accused has the right to be tried by a jury under the terms and conditions of section 16-10-109, C.R.S.
  2. Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record or by announcement in open court appearing of record.
  3. A defendant may not withdraw a voluntary and knowing waiver of trial by jury as a matter of right, but the court, in its discretion, may permit withdrawal of the waiver prior to the commencement of the trial.
  4. Except as to class 1 felonies, the defendant in any felony or misdemeanor case may, with the approval of the court, elect, at any time before the swearing in of the jury, or after the swearing in of the jury and before verdict, with the agreement of the district attorney and the approval of the court, to be tried by a number of jurors less than the number to which he would otherwise be entitled.
  5. Upon request of the defendant in advance of the commencement of the trial, the defendant shall be furnished with a list of prospective jurors who will be subject to call in the trial.
  6. Either the district attorney or the defendant may challenge the array on the ground that there has been a material departure from the requirements of the law governing the selection of jurors, but such challenge shall be made in writing setting forth the particular grounds upon which it is based and shall be filed prior to the swearing in of the jury selected to try the case.
  7. Except as to class 1 felonies, with respect to a twelve-person jury, if the court excuses a juror for just cause after the jury has retired to consider its verdict, the court in its discretion may allow the remaining eleven jurors to return the jury’s verdict.
Colorado Law Requires That A Waiver Of A Jury Trial To Be Voluntary, Knowing, And Intelligent

Colorado judges recognize the significance of the decision to waive a jury in favor of a judge trial. Before accepting the waiver, the judge must believe that the your waiver is a voluntary, knowing and intelligent decision and that you have the mental capacity to understand the implications of waiving your trial by jury.

The waiver dialogue with the judge is usually performed orally through questions asked of the accused. These questions are intended to confirm that the Defendant understands the implications of waiving the jury.

As noted above, the consent of the prosecutor is required in Colorado to waive the jury. Many prosecutors, paranoid that the waiver of the jury is a “trick,” will object just because "they can” without ever thinking through the reasons why THEY may not want a jury trial in a given case.

Understanding What You Are Giving Up When You Waive A Jury Trial In Colorado

When you are charged in a criminal case, if there is no plea bargain, you must decide on the “fact finder” that will decide whether the State of Colorado has proven those charges beyond a reasonable doubt. That decision is binary will your trial will heard by a judge (a “bench” trial) or will it be a jury trial?

A person charged with a Colorado crime will want the “fact finder” that will exercise a fair and impartial decision on the evidence in your case.

Choosing a Jury Even if you Lose, you Will Probably Feel as if you Have had the Best “Shot” at Justice

When you are charged with a crime in Colorado you are seeking justice. In almost every instance, a jury of your peers is much more likely to give you the kind of confidence in the outcome than a judge trial. It is only with a jury trial that you will feel the administration of justice is brought closer to you. As one of the people, you will want to be judged, not by a lawyer the Judge), but by people like you… from your community.

A judge must be coldly impartial and impersonal and difficult to sway with appeals to emotion. A judge must administer the law strictly and as they apply the law to the facts in some cases, they must do so dispassionately, (see below). As a criminal defense lawyer I do not want that cold, heartless and strict approach to my defense case.

While a jury is made up of strangers to one another, they answer to each other and to their collective conscience and they must live in the community where their decisions are rendered.

As a Colorado criminal defense lawyer, I want emotional jurors in certain cases cases where my client has been severely wronged by the alleged “victim” in a case or where my client has a defense that is based on an “alternate suspect” or a poorly made identification, or a third rate investigation was conducted in the case.

There are dozens of reasons to want a jury and this article addresses only a few of the main reasons.

While Colorado jurors are instructed, as a matter of law, that they must not become emotionally involved,.. but they do. They are human and they will use emotion in their deliberations notwithstanding the jury instructions.

Thank God.

The Requirement For Unanimous Verdicts In Colorado Jury Trials

Colorado requires unanimous verdicts. If one juror disagrees with the rest of the panel of jurors and votes differently, a unanimous verdict is impossible and there is a hung jury. The requirement of a unanimous verdict provides great protection to the Defendant. Every juror must find that the case was proven beyond a reasonable doubt.

A Single “Fact Finder” Means One Vote Up Or Down

If you waive a jury and ask for a bench or judge trial, one person decides your fate guilty or not guilty. In a Colorado felony jury trial there are 11 more “judges” to review the State’s case and to hold the State to their burden of proof. With 12 judges there is a much greater chance for at least one person who will agree with your side your perspective your defense versus a judge who will see the case one way his or her way.

Why Judge or “Bench” Trial is Almost Always the Wrong Decision or why a Trial by Jury is Usually a Better Choice 1. Colorado Judges are Elected Therefore They are “Political” While Juries Answer to no one

Judges in Colorado are elected by the people. Judges answer to an electorate that is conservative for “law and order.” Juries are immune to the people they hear the evidence and are beholden to no one. The politics of elections and public pressure are absent.

This is especially true in high profile cases where pressure from news media, the alleged victims or other organizations can greatly impact a Colorado judge’s decision. A judge will always be sensitive and concerned about the “wishes” of his or her constituency.

2. Judges are Often “Too Close” to Law Enforcement and to the Prosecutors Assigned to Their Courtrooms

It is well known to old lawyers that judges most often side with the District Attorney assigned to their courtrooms. This is especially true if the judge is new to the job. Judges are sort of “bound” to the prosecutors assigned to their courtrooms as they work closely with these prosecutors every single day. As a former career prosecutor I know this to be true.

3. Even Former Defense Lawyers who Become Judges may Lose Their Objectivity Over Time

As a former prosecutor I also have watched moderate, even formally liberal lawyers, who later become judges, change their beliefs when they must sentence convicted individuals thousands of times a year. They hear every excuse, every defense there is day in and day out. This “changes” the attitude of many of these judges colors their view of the criminal justice system and in a jury trial this can have the effect of making these judges much less sympathetic to those accused of crimes.

4. Juries Make Much Better Audiences Than Colorado Trial Judges

Juries will always respond to a compelling story. They will assign blame as they would in a good story, a good play or a good book. Juries are swayed by drama, the pathos of a trial will appeal to them as it unfolds before them. Juries decide cases on the basis of what is fair and just and not necessarily the strict, cold and unfeeling application of the law to the facts.

Juries make the law “live.”

5. Judges Know all the Facts and Allegations In Your Case

A Colorado Trial Judge will know ALL of the evidence in your case even the evidence that would never be heard by a jury in a Colorado court of law under the Colorado rules of evidence. The judge also knows your criminal history. All of it. Knowing your past, because judges are also human, may make them subject to certain preconceived notions that can hurt your case.

Some Very Good Reasons Why Would You Want a Judge or a “Bench” Trial

As a general proposition, there are very few cases where a judge or a “bench” trial is a better choice than a jury trial. What follows is my view on some of the cases where a Colorado judge may be the better choice.

  1. If you are “going pro se” that is, representing yourself, a judge may be a better choice. A Colorado judge will usually be easier or more relaxed about the rules of evidence, technical prosecutor objections, and general courtroom rules and regulations. Colorado juries are very critical of the poorly prepared Defendant handling his or her own case
  2. When cases are based on highly technical Colorado criminal law “nuances” the judge trial tends to be the better choice. Subtle legal distinctions of law are often lost on the Colorado jury. understandings of the law than would ever occur to the average juror. This is usually the time to go with a highly trained and experienced Colorado judge. Technical legal defenses require an understanding of the law are not favored by the more emotional jury (who will sometimes see the defense as a lawyer’s “trick”) and may find a highly technical defense as either confusing or inapplicable.
  3. The “Terrible Facts” Case may offend the jury thus distracting them from their duty to carefully weigh and analyze the evidence in your case. A judge, on the other hand, is trained to set aside his or her anger and emotion when deliberating on the “terrible facts” case.

Terrible facts case may include such cases as sex crimes, vehicular assault or vehicular homicide cases, serious domestic violence cases, cases involving child abuse, or even home burglaries.

Jury biases in these cases are well known to experienced Colorado criminal defense lawyers and they are hard to overcome. Judges have the kind of professional experience to look past the emotions stirred up for the alleged victims of these kind of cases and focus solely on the strength and weaknesses of the evidence.

The “Bench” Trial a key Question who is the Colorado Judge Assigned to Your Case?

Above all else before making the decision to waive a jury consult closely with your lawyer and make certain you “know” the Colorado judge presiding over your case.

Questions here include:

  • What are the specific tendencies of this judge as they may relate to the specific charges such as those filed against you?
  • How would local juries react to the charges in your case when compared to the judge presiding over the case.
  • How is the prosecutor “received” in the court in which the case will be tried? If your lawyer appears often before the judge in question he or she will know whether that prosecutor will appeal to that judge, offend the judge, appeal to the typical jury or offend the jury in that courtroom given the issues and questions that are raised by the evidence or lack of evidence in your case.
Colorado Criminal Law Jury Trial or Judge “Bench” Trial a Critical Decision

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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm 303-627-7777.

Never stop fighting never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

About The Author: H. Michael Steinberg Email The Author at: [email protected]. A Denver Colorado Criminal Defense Lawyer or call his office at 303-627-7777 during business hours or call his cell if you cannot wait and need his immediate assistance please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 30 plus years by focusing ONLY on Colorado criminal law H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way Colorado Criminal Law Jury Trial Or Judge “Bench” Trial A Critical Decision.

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