Factors for Client To Consider for Jury Waivers
There are many factors in jury waiver, below are only some of many things counsel should consider when advising a client about the benefits and drawbacks of a jury trial. Each factor should be accorded a heavier or lighter weight depending on the specific case.
The Client
In general, it can be assumed that a jury trial may be better suited for a likeable client with a pleasant demeanor. Questions to consider include: Is the client credible? Is the client likeable? Does the defendant easily become agitated? Will the client’s demeanor at counsel’s table or on the witness stand play well to the jury?
Jury Tax
A judge cannot properly impose a more severe punishment merely because a defendant did not waive his or her right to a jury trial. People v. Banks, 241 Ill.App.3d 966, 609 N.E.2d 864, 875 – 876, 182 Ill.Dec. 330 (1st Dist. 1993). However, human nature cannot be denied, and a sentencing judge could at least be subconsciously influenced if he or she believes that time was needlessly wasted by having a jury hear a case involving a questionable defense. Counsel may consider such things as the judge’s personality and reputation when discussing the matter with the client.
Cost
For defendants who have retained private counsel, cost is likely to be a consideration. As jury trials involve substantially more work than bench trials, jury trials are more expensive than bench trials. Unfortunately, for most clients economics will probably play a major role in deciding whether to be tried by a jury.
Type of Defense (Technical or Emotional)
There are no set rules, but it may be better to have a bench trial when the defense is either technical or very emotional. A good judge may be more apt to set aside emotions and seriously consider a “legal technicality.” If the defense is that the client is not guilty of predatory criminal sexual assault of a child because his or her finger was “on” the child’s sex organ but not “in” the organ, such a defense may be a tougher sell to a jury. On the other hand, if the client is sympathetic and emotions perhaps favor him or her, a jury trial may be the better option. Thus, if a defendant is on trial for attempt murder for shooting a man who had harmed his daughter, a jury trial may be the better route.
Twelve Judges vs. One
At a jury trial, the prosecution must convince 12 finders of fact beyond a reasonable doubt that counsel’s client committed the alleged crime. The state need only to persuade one judge at a bench trial. All things being equal, it is more difficult to convince 12 people than just one. As the state bears the burden of proof, this factor weighs in favor of a jury trial.
Mandatory Sentencing
Mandatory minimum prison sentences and mandatory consecutive sentences (when sentences are not served at the same time but one after the other) are becoming more and more common. Possible sentences are irrelevant during jury trials in which the jury does not play a role in determining the sentence, and in such cases it is error for the jury to be informed of the potential sentences. People v. Cisewski, 118 Ill.2d 163, 514 N.E.2d 970, 976, 113 Ill.Dec. 58 (1987). A judge is aware of the potential sentences, whereas the typical jury is not. If counsel’s client is facing minimum sentences that seemingly would be unjust, a judge may more closely scrutinize the state’s evidence than he or she otherwise would.
Appellate Issues
During bench trials, judges are presumed to know the law, and absent a clear showing to the contrary on the record, appellate courts will presume that the judge only considered proper evidence. People v. Taylor, 344 Ill.App.3d 929, 801 N.E.2d 1005, 1010 – 1011, 280 Ill.Dec. 60 (1st Dist. 2003); People v. Duff, 374 Ill.App.3d 599, 872 N.E.2d 46, 51, 313 Ill.Dec. 286 (1st Dist. 2007). Therefore, appellate courts are more likely to find error occurred during a jury trial than at a bench trial. Moreover, a jury trial offers many more opportunities for error to arise. Error could happen during voir dire, opening and closing statements, or when instructing the jury on the law. It is more probable that an appellate court will find reversible error transpired at a jury trial. Particularly when one’s client is charged with a very serious crime and an appeal is imminent in the event of a loss, this factor should weigh.
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