In the United States, a criminal defendant generally has the right to a trial by a jury. That right is guaranteed by the Sixth Amendment.
In two circumstances, however, a criminal case may be decided through a trial by a judge instead of a jury – known as a “bench trial.”
First, a judge may hear a criminal trial if the crime is “petty” or not “serious.” A petty crime is one that is punishable by a maximum of six months’ imprisonment or less, and there are no other statutory or regulatory penalties so severe that the legislature clearly determined that the crime was serious.
Second, a criminal defendant may waive the right to a jury trial. The defendant’s request must be voluntary, knowing, and intelligent, and must be made in writing. Both the court and the government must approve of the defendant’s request.
Most white-collar criminal cases that go to trial will involve offenses that qualify as “serious” so a white-collar defendant will almost always have the option of requesting a bench trial or insisting on a jury.
Many considerations go into that decision. For example, judges are typically viewed as being better able to dispassionately apply the facts to the law. Thus, a defendant in a high profile case with inflammatory facts, but perhaps with some viable technical legal defenses, might request a bench trial. On the other hand, a case involving sympathetic, but legally irrelevant, mitigating factors might fare better before a jury.
As a general matter, federal prosecutors will rarely agree to a bench trial. They tend to believe the visceral reaction of jurors considering charges brought by the Department of Justice, often following a substantial investigation, gives them an advantage. Accordingly, bench trials are less common. For example, in 2017, U.S. district judges presided over 1,707 jury trials in criminal cases, but only 416 bench trials. Those statistics, moreover, likely understate the disparity because those 416 bench trials include cases involving petty crimes where the defendant is not entitled to trial by jury.
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