what if i dont go to a bench trial

By Sara Kropf

There are a few key ramble rights for a criminal defendant.

The right to a lawyer.

The right to confront witnesses.

The right not to incriminate yourself.

And the right to a jury trial.

Ane disappointing part of law school was learning how express these rights are in real life. For example, you can exist under criminal investigation for years and be interviewed by the government repeatedly—all without a lawyer. The right to face up witnesses is severely express by the exceptions to the hearsay dominion. Certain, you don't have to evidence confronting yourself, but the regime can utilize your own words in emails and text messages against you as much as it would like.

The right to a jury trial does have fewer restrictions than some of these other rights. It applies in federal court (through the Seventh Amendment) and state court (through the Fourteenth Amendment). Nonetheless, you lot don't have a right to a jury trial for less serious crimes, unremarkably defined equally having a potential penalty of less than six months in jail.

Despite these limitations, a defendant has the right to a jury trial. If y'all have this right, then shouldn't yous be able to waive it ?

Remember of it this manner.

You have the right to a lawyer. But if yous decide you don't want a lawyer, you tin can proceed pro se.

You have the right to face up witnesses. Merely your lawyer can decide not to ask a witness questions.

You have the correct not to incriminate yourself. But you lot can decide to confess.

When it comes to a trial correct, what happens if a defendant decides he doesn't want a jury trial? Tin can he unilaterally demand a demote trial instead?

No.

What Is the Rule?

Rule 23 of the Federal Rules of Criminal Process is the relevant rule. Here's what it says:

(a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless:

(i) the defendant waives a jury trial in writing;

(2) the government consents; and

(3) the court approves.

As you may accept noticed, the government must consent to the waiver. That's not the case for any other ramble rights. If the government doesn't agree that a defendant gets a bench trial, then the courtroom will generally require a jury trial. Plus, even if the regime and the defendant both agree, the judge could deny the request, since Rule 23 requires court approval of any waiver.

At that place is an exception to this rule, withal. In Singer v. United states of america, 380 U.S. 24 (1965), the Supreme Courtroom rejected the defendant's argument that this prosecutorial veto infringed on his Sixth Subpoena rights. The Supreme Courtroom held that

The Government, equally a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried earlier the tribunal under which the Constitution regards as nigh likely to produce a fair result.

The Vocalizer Court also held that Rule 23(a) does not require that the Regime explain why it was withholding its consent to a bench trial.

Why Would a Defendant Want a Demote Trial? (And Why Would the Government?)

As a defence force lawyer, I generally prefer a jury trial.

First, we get to pick it (sort of) whereas a judge is randomly assigned to the case. My client gets some say in who is on the jury. Given how powerless it is to be a criminal defendant, this is an important part of the process.

Second, a jury of 12 people means that I just have to convince one of them that there is reasonable doubt to have a hung jury and a mistrial. That'due south not an acquittal, simply it's a lot better than a guilty verdict.

Third, judges are people likewise. They take biases and quirks. They don't pay attending sometimes. Judges are not necessary any more impartial than typical jurors.

That said, I may want a bench trial in a complex white-collar case where I have a very technical defense. Let'south say our defense is that my hedge fund client had a reasonable belief that an accounting rule permitted a certain decision. But that decision meant that hundreds of elderly investors lost their life savings. I may recall that a gauge volition be able to carve up the legal claim of the defense from the very bad outcome for the investors.

I would also consider a bench trial if the case involves a high-profile affair that afflicted a community mostly or possibly a local regime official whose downfall is a matter of intense public opinion.

The authorities may not want a demote trial because the prosecutor thinks the presiding judge is more likely to notice the accused not guilty or may be sympathetic to the accused'due south arguments. The prosecutor may call up that bringing the appearance of the United States Authorities to a courtroom will have a powerful effect.

Of form, for the government to say no to a asking for a bench trial sends a message that the prosecutor doesn't trust the judge, and that's a dangerous position as well.

Exception to the Rule and a Recent EDNY Instance Raising the Issue

What if the government refuses to consent? Does it have an absolute right to veto a accused's waiver?

No.

The Supreme Court recognized in Singer that "there might exist some circumstances where a accused's reasons for wanting to exist tried by a approximate alone are so compelling that the Government'due south insistence on trial by jury would result in the deprival to a defendant of an impartial trial." Singer, 380 U.Southward. at 37. There are also rights to a speedy trial that could be implicated if a jury trial were delayed.

The COVID-xix pandemic has made this somewhat-abstract issue very, very existent.

In a recent case in the Eastern District of New York, the accused Michael Cohn waived his right to a jury trial in a complex white-neckband criminal case. But the government wouldn't consent. Mr. Cohn's lawyers asked the judge to apply the Singer exception to let the case to proceed virtually with a bench trial, rather than wait for an in-person jury trial to occur.

As his counsel argued

Under these circumstances, information technology is unlikely that Mr. Cohn volition be able to obtain a jury trial, in a condom environs, for many months if non longer. His constitutional right to a speedy trial and due process of law is impaired past the ongoing delay. The Court'due south offering to conduct a demote trial with video-conferencing technology was an innovative proposal that offered Mr. Cohn a pathway to have his case tried in a timely manner. Mr. Cohn seeks to avail himself of this opportunity. Nether these extraordinary circumstances, Mr. Cohn submits that the compelling exception noted past the Supreme Court in Vocaliser has been satisfied and respectfully submits that the Court order a bench trial over the government's objection.

The government'due south response was . . . not illuminating. This is the whole response (the prosecutor was really taking advantage of the fact the Singer did not require a reason):

The regime respectfully submits this letter in response to the Court's inquiry at the July 27, 2020 arraignment on superseding indictment in the above-captioned matter as to whether the government would consent to a non-jury trial in view of the ongoing COVID-nineteen pandemic. Upon due consideration of the relevant facts and circumstances, including the ongoing pandemic and the defendant'due south individual circumstances, and pursuant to Rule 23(a)(two) of the Federal Rules of Criminal Procedure, the regime does non consent to a non-jury trial in this affair.

The court granted the motion and ordered that a demote trial exist scheduled:

The Courtroom declines the Government's application to stay (or perhaps effectively reconsider) its determination of August 26, 2020. The Court agrees with the observation of defense counsel that "delaying the trial until the end of October increases the take chances that the coming flu season combined with a resurgence of the COVID-nineteen pandemic will curtail the Districts ability to hold any trials." For this, and other reasons set along in detail in the August 26 Order, the application is DENIED.

Equally to the logistical bug raised by the Government, including its anticipation of calling more than a dozen witnesses from various states, and the issues connected with quarantine and travel restrictions — all of which further support this Courtroom's determination to hold a nonjury trial– these matters may be farther and fully discussed at the briefing scheduled for September 8, and all reasonable adaptation will be made to ensure that both sides receive the benefit of a fair trial. Simply for avoidance of doubt, the Government should complete its discovery obligations and brainstorm making arrangements to make witnesses available for trial, with the expectation that the trial will embark every bit presently as practicable following the conference.

Information technology's worth noting that a few days afterwards the guess's guild, the government filed a superseding criminal information that knocked downwardly the charges from the original indictment from two (obstruction of justice and unauthorized disclosure of government information) to i (theft of government property). Mr. Cohn pleaded guilty to the single count that same day, suggesting that the change in charges was the upshot of a negotiation.

Maybe the court's social club—and the possibility of a virtual bench trial—made all the deviation hither.

guerracirt1943.blogspot.com

Source: https://grandjurytarget.com/2020/09/10/what-if-you-dont-want-a-jury-trial/#:~:text=If%20the%20government%20doesn't,court%20approval%20of%20any%20waiver.

Share this post