Trial by Jury or Judge—Which One?

People charged with a crime face the choice of either a jury deciding their case or a judge without a jury.  Which one should the accused pick?  Why would they choose one over the other?  Which one gives them the best chance?”colin.nelson.smallfile

The Constitution provides that an accused person is entitled to a “jury of their peers.”  Today, that means a jury of twelve people (usually an extra person is added as an “alternate” juror in case one of the original twelve get sick or can’t serve) who must decide if the person has been proved guilty or not.  In a criminal case, the decision must be unanimous—meaning that all twelve people must decide if the prosecution has proved their case.  If one or more disagree, this is called a “hung jury” and no verdict or decision will be reached.

Or, an accused person may choose to waive a jury trial and have a judge decide the case without a jury.  That means only one person, the judge, will decide if the prosecution has proved their case beyond a reasonable doubt.

Why would a defendant choose one or the other?

Generally, most defendants choose a full jury.  The judge who has been assigned the case for trial will often know many things about the case or defendant that shouldn’t be brought up in trial.  And even if the judge tries hard to be fair, he has still heard the other information that may affect the decision.  A jury is carefully screened from extraneous information that doesn’t pertain to the facts in the trial.  Some believe that the jury, therefore, can be more fair because they are hearing the case for the first time in the trial.

But what if the defense is very technical?  Or is a legal defense rather than a factual one?

In that case, a judge may be the better choice.  I had a case a few years ago where I was representing a young man accused of killing another man by beating him to death with a shovel.  After the killing, the defendant tied the body to a car battery and sank it in a local stream.  Several weeks later, the body surfaced and was discovered.  The Medical Examiner did an autopsy but couldn’t establish a cause of death since the body was so decomposed.  The defense I used was that since the ME couldn’t say what caused the death, it could have been by accident when the victim fell and hit his head on a rock—that may have caused the death rather than the beating with a shovel.  This was a legal issue that only a judge could decide.

I’ve often advised clients that if they’re guilty, they should demand a jury trial.  Sometimes, a jury will be affected by the personality of the accused and give him an extra chance—even though the judge has warned the jury not to let prejudice or favoritism affect their thinking.  Often, judges are cynical because they’ve seen so much where juries are fresh and the trial facts are new to them.

If any of you have been on a jury, what are your thoughts?  If you were accused of a crime, would you choose a jury or a judge?


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About Colin Nelson

Colin T. Nelson worked for 40 years as a prosecutor and criminal defense lawyer in Minneapolis. He tried everything from speeding tickets to first degree murder. His writing about the courtroom and the legal system give the reader a "back door" view of what goes on, what's funny, and what's a good story. He has also traveled extensively and includes those locations in his mysteries. Some are set in Southeast Asia, Ecuador,Peru, and South Africa. Readers get a suspenseful tale while learning about new places on the planet. Colin is married, has two adult children, and plays the saxophone in various bands.

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