Friday, January 11, 2013

The Decision

Remember that?  Well, this post is not about that farce. An actually important decision is made in American courtrooms every day.  One that is of far more importance than Lebron's television special.

It's the decision to be tried by a jury or a judge.  Did you even know a person had a choice?

In New York State, every defendant has a right to be tried by a jury when charged with a misdemeanor or felony.  There are two exceptions:  1) defendants charged with class "B" misdemeanors in New York City, and 2) defendants eligible for youthful offender adjudication and charged with any misdemeanor.  In both those cases, the trial must be a bench, or non-jury, trial.  Criminal Procedure Law 340.40.

The reason for the first exception is mainly to expedite cases through a crowded court system.  It allows prosecutors to reduce charges from class "A" misdemeanors to class "B" misdemeanors and try the case in front of a judge.  A case that would take three days to a week to try can now be tried in an afternoon.  The discretion for this lies solely with the prosecutor though.

A defendant can waive their right to a jury trial in any felony or misdemeanor case that is not murder in the first degree.  It must be done in writing, on the record in open court, and the defendant must answer a litany of question from the judge relating to his understanding of the waiver.  If it is waived, the judge will decide the defendant's guilt.

Why would anyone want to waive the right to a jury trial that our revolutionary forefathers fought so hard for?  Some reasons:

1) The judge has already indicated his/her negative thoughts about the merits of the case,
2) The case is based on legal distinctions that a jury might not understand or care about,
3) The facts of the case might prejudice the jury (e.g. defendant is on parole, has a criminal history, drug/alcohol abuse, clear gang affiliation), or
4) The judge might be more inclined to convict of a lesser charge

In New York, if the defendant wishes to waive his right to a jury trial, the prosecution's position does not matter.  In federal court, both the prosecution and defendant must consent to waive a jury trial.

Waiving a jury trial is only appropriate in a limited number of cases.  There are plenty of negative consequences.  Only one person is making the decision, not twelve citizens with no legal training and no familiarity with each other.  Arguments on appeal are significantly reduced.  Generally, both the defense attorney and the prosecutor agree to admit certain evidence and stipulate to some testimony leaving less room for cross-examination.

A person facing the prospect of criminal prosecution has many decision to make before arriving at the ultimate question - bench or jury.  Once there, a candid conversation with their attorney is warranted concerning the merits of a jury and bench trial.

The reason this topic came to me is that I prepped for a jury trial for the last two weeks.  It was slated to begin this week, but the defense attorney waived a jury trial the day before it was set to begin.  I always feel relieved and disappointed when this happens.  The relief is because I do not have to put on a show and have my every move scrutinized by twelve strangers for a week.  The disappointment is because I really love when I get to put on a show and get scrutinized by strangers.  


  1. Nothing like getting yourself all psyched up for something and then having it pulled out from under you. It's a bit of a letdown, even if it is a bit of a relief.

    Interesting stuff, I hope I never have to find myself making that choice.

  2. "Only one person is making the decision. . .with no legal training and no familiarity. . . Arguments on appeal are significantly increased. Generally, both the defense attorney and the prosecutor agree to admit certain evidence and stipulate to some testimony leaving less room for cross-examination.

    Boy do you have that right! All I excluded in that paragraph were the words "twelve citizens" and "familiarity with each other" and changed the word "decreased" necessarily to "increased." Right there you have aptly described the situation that goes on in 72% of the approximately 1277 town "justice courts," where in this State of New York, where you can indeed practice law without a license, so much so that that juxtaposition of the two words, "justice" and "court" has become the biggest, most offensive oxymoron in this state. Except that, if you are pro se, it's not the prosecutor and the defense attorney who stipulate to testimony and leave less room for cross examination, it's the justice and the prosecutor -- and in at least one of these so-called "justice courts," they do it to the point of creating fraud before the court (yes, I am referring to lying lying about the evidence and then editing the transcript to prevent its being reported to the proper agencies; that's *exactly* what I am referring to).

    Maybe this doesn't happen in the big city downstate and its surrounds, but I assure, you it happen(ed)(s) up here.

    (statistics from the New York State Magistrates Association,