Who should you choose to render the verdict at your trial — a judge or a jury?
In criminal trials, the defendant gets to choose whether to have a trial by judge (also known as a “bench trial”) or a trial by jury.
There are two exceptions to this rule: 1) when the most serious charge carries a maximum penalty of 90 days or less (in counties outside New York City, 15 days or less); and 2) when the most serious charge is a misdemeanor and the court must impose a “youthful offender adjudication” (seal the conviction because the defendant is 18 years or younger).
Juries are made up of regular citizens of the county, district, city, town or village where the trial is held. In criminal courts where misdemeanors are the most serious charges that can be brought to trial (Criminal Court, District Court, City Court, Town Court and Village Court), juries consist of 6 people. In superior courts where felonies are the most serious charges that can be brought to trial (Supreme Court and County Court), juries consist of 12 people.
When a jury is involved, the jurors are known as “the judges of the facts”, and the judge is known as “the judge of the law”. As judges of the facts, jurors determine which facts have been proven, and whether the prosecutor has proven the defendant guilty beyond a reasonable doubt. As judge of the law, the judge instructs the jury on the law that the jurors must apply when they act as judges of the facts.
When no jury is involved, the judge acts in both capacities, as the judge of the facts and as the judge of the law.
With one exception, in every case where my client had the opportunity to choose, I advised my client to choose a jury trial rather than a bench trial.
I favor juries for one main reason: a prosecutor might have greater difficulty getting a unanimous verdict of guilty against my client from 6 or 12 jurors than from 1 judge.
The exception to this logic would be in a case where the defendant fears that jurors might be less likely to properly evaluate the facts than the judge. For example, in counties where jurors are perceived to have an anti-police bias, a police officer accused of assault or homicide might choose a bench trial over a jury trial. In counties where jurors are perceived to have an anti-immigrant bias, an immigrant accused of a crime might choose a bench trial over a jury trial. In any county where a defendant is accused of a particularly reviled type of crime, such as a sex crime against a child, the defendant might choose to have 1 judge, rather than 6 or 12 jurors, decide whether the prosecutor has proved guilt beyond a reasonable doubt.
Often, the identity of the trial judge is not known until the first day of trial. For obvious reasons, the decision to give up the right to a jury trial should not be made without knowing exactly who the trial judge will be.
Bottom line: Never give up the right to a trial by jury unless you have a very good reason for doing so.
Bruce Yerman is a New York City criminal defense attorney. If you have been accused of a crime, contact Bruce for a free consultation: