Waiving my right to a jury trial – Is it a good idea?

It can be. There are times when defendants in criminal cases may want to waive their right to a jury trial, and instead have a bench trial where the judge alone decides guilt or lack of guilt.

Examples of when a defendant may want to waive a trial by jury include when:

1. the defendant is alleged of committing a violent crime or one strongly against public policy (for example, mayhem),
2. the judge has a reputation of leniency,
3. the case is in the national spotlight,
4. the accused’s appearance suggests a criminal history, and
5. the criminal defendant is interested in a quick and inexpensive resolution of his/her case.

In addition, an accused may want to agree to a waiver of any trial whatsoever when the party wishes to plead guilty or no contest to a charge (perhaps as part of a plea bargain).

If the latter takes place, then the case moves directly to the sentencing phase of the criminal court process.

Note that a defendant can only waive his/her right to a jury trial if the waiver is done both:

• voluntarily, and
• intelligently.

Further, under federal and state laws, accused parties are not always granted with the right to a jury trial. For example, the right may not apply with regards to crimes that carry a sentence of less than six months.

Is it ever a good idea for a criminal defendant to waive the right to a jury trial?

In most jurisdictions throughout the United States, there are times when it is in a defendant’s best interests to waive his/her constitutional right to a jury trial and have a judge alone decide the case via a bench trial.

Examples of when a defendant may want to waive the right to a jury trial include when:

1. the defendant is charged with a violent/heinous crime: Jurors in these cases may have a hard time showing sympathy towards the accused and a judge is better positioned to impartially hear evidence.
2. the judge has a reputation of leniency: A judge that is favorable to defendants may take away some of the risk of a jury trial.
3. the accused appears like a criminal: Appearances often matter in the court room and jurors may quickly jump to a finding of guilt if the defendant looks like he/she has a criminal history.
4. the defendant wants a quick and inexpensive resolution of his/her case: Bench trials are often resolved quicker than jury trials and typically cost less money than a jury trial.
5. the case receives national attention.

With regards to this last scenario, note that depending on the circumstances of the case, a matter that draws national attention may result in a difficulty in a defense attorney finding an impartial group of jurors. Also, a judge may be better suited to hear the case in open court with greater neutrality.

Should defendants ever waive their right to a trial altogether?

Yes. There are times when an accused should waive his/her right to a trial altogether – this includes both a jury trial and a bench trial.

The waiver of a jury trial or a bench trial is favorable if the defendant wishes to plead:

• guilty, or
• no contest.

Accused parties may enter such a plea if they:

1. admit that they committed a crime, and/or
2. decide to do so as part of a plea deal.

Note that if a defendant waived his/her right to trial, then the case moves directly into the sentencing phase of the criminal court system.

How does a defendant waive his/her right to a jury trial?

In all criminal prosecutions, a defendant can only waive his/her right to a jury trial if it is done voluntarily and intelligently.[i]

This is true in both federal courts (according to federal rules) and state courts.

A defendant often intelligently and voluntarily waives the right to a jury trial after the judge informs on the differences between a jury trial and a bench trial.

Some of these differences include that:

• in jury trials, all 12 jurors must unanimously agree to render a verdict, but in bench trials only a judge must decide, and
• defendants and their attorneys can participate in jury selection in jury trials (there are no jury selections in bench trials).

What are contractual jury waivers?

A contractual jury waiver is a provision that is found in some contracts. Such waivers result in one or both parties to the contract agreeing to waive the right to have a jury trial if there is a dispute under the contract.

The waiver works to have the parties agree to a bench trial as opposed to a jury trial.

These provisions are different from arbitration clauses as the latter are a waiver to a trial altogether.

Contractual jury waivers are sometimes referred to as pre-dispute jury waivers.

Note that these provisions arise in civil cases as opposed to criminal cases and litigants may contest them in civil court.

Note, too, that questions often arise on the enforceability of these provisions under state law.

Most state courts, though, (either a state’s district court, superior court, or supreme court) have ruled that these provisions are enforceable.[ii]

Does a defendant have a right to a jury trial in all cases?

No. A defendant does not have a right to a jury trial in all cases.

The right to a jury trial is guaranteed by:

• Article III, section 2 of the U.S. Constitution, and
• the Sixth Amendment to the U.S. Constitution.

Note that it is a Seventh Amendment right for a person to be entitled to a jury trial in certain civil cases.

As to criminal cases, the right to a jury trial was passed on to all states within the U.S. via the Due Process Clause.

Nevertheless, there are limitations on the right.

Under federal rules, a jury trial is not required if a criminal charge does not carry “serious penalties.”

Further, if a crime carries a sentence of six months or less (for instance, for a misdemeanor offense), then a state can say that a defendant does not have a right to a jury trial. For example, New York has adopted this rule.

In contrast, according to the California constitution, defendants in California have a right to a jury trial whenever they are charged with an offense that is punishable by any amount of jail time.[iii]

[i] See, for example, People v. Jones (2018) Los Angeles County Super. Ct. No.VA133291.

[ii] See, for example, Parsons v. Associated Banc-Corp. (2017) 70 Wis. 2d 112.

[iii] People v. Oppenheimer (1974) 42 Cal. App. Supp. 3d 4.