Criminal Law

Waiving the Right to a Jury Trial

An individual accused of a serious crime, or defendant, is entitled to a trial by jury. The jury, not the judge of the court, will determine whether the defendant is guilty or not guilty of the charged crime. This right to a jury trial for serious crimes isĀ constitutionally protected and applies to both federal and state courts.

Although the defendant may be entitled to a trial by jury, there may be various reasons why he doesn't want one. The defendant may waive his right to a jury and have the determination of his guilt be made by the judge. A trial in which the judge determines the defendant's guilt is called a bench trial.

Reasons to Want a Jury Trial

Most defendants want a trial by jury. A verdict in a federal criminal case must be made by a unanimous vote. If one juror disagrees with the rest of the jurors and votes differently, a verdict can't be returned to the court. This right provides great protection to the defendant and requires the prosecutor to have to prove to each juror that the defendant committed the charged crime.

The unanimity requirement doesn't extend to state criminal courts. States have the authority to decide whether or not to require a unanimous vote to return a criminal jury verdict. However, only two states have chosen not to require juries to reach unanimous verdicts: Louisiana and Oregon.

Reason to Waive a Jury Trial

There may be some advantages in waiving a jury trial. Many times it depends on the type of crime the defendant is accused of committing. Some examples of when it might be best to waive a jury include:

  • Negative Pretrial Publicity
  • Particularly heinous crime
  • Long criminal record
  • Very complicated and technical legal issues

The defendant may want to waive the jury anytime he believes that the criminal issues of the trial are so terrible that they'll influence the jurors into seeking punishment regardless of the evidence. Also, if there's a chance that the defendant could be found not guilty because of a legal technicality, the judge may be able to understand the legal issues better than the jurors, who may get confused by the law.

How to Waive a Jury Trial

Since the right to a trial by jury is very important, there are specific requirements in order to waive the jury. These include:

  • The defendant's consent to forgo a jury trial must be written
  • The defendant's agreement to waive the jury must be voluntary, knowing and intelligent
  • The prosecutor must consent
  • The court must approve of the waiver

The purpose of requiring a written waiver is to allow the defendant to understand what he's consenting to and to provide evidence of the consent. The written waiver usually includes the defendant's waiver of his right to a trial by jury and his consent to a bench trial.

The court must believe that the waiver is the defendant's voluntary, knowing and intelligent decision. He must have the mental capacity to understand the implications of waiving his right to a trial by jury. The court may orally question the defendant to confirm that he understands these implications.

The consent of the prosecutor is necessary to waive the jury. The prosecutor has a legitimate interest in having the case tried in the most likely manner to produce a fair trial. However, some courts may allow a defendant to waive a trial by jury even without government consent. This usually revolves around negative pretrial publicity that would make it impossible to have an impartial jury.

The final precondition to waiving the jury is the court's approval. This insures that the court will make sure that the defendant is capable of waiving the jury and that all the other preconditions are met.

Withdrawing a Jury Trial Waiver

The defendant may withdraw a jury waiver as long as it doesn't inconvenience the court or other participants connected to the case. If the request to withdraw a waiver is made right before trial, the court has the discretion to deny the request. Likewise, the court may deny a request to withdraw if it's an attempt to delay the trial proceedings.

Questions for Your Attorney

  • Does my appearance play a part in whether I should waive a trial by jury? What about my race and ethnicity?
  • Does the size of the community affect whether I should waive a trial by jury? What if the community is small and most people know each other?
  • What can I do if the prosecutor is refusing to consent to my waiver of a jury trial?
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