Judge vs. Jury Trials

The ability to decide the outcome of a court case is a powerful responsibility. If you’re heading to court, you’ll want to know whether the people who decide your case will be fair to you.

There are important differences between bench and jury trials, whether you represent yourself or have an attorney. Before you decide between the types of trials, it’s a good idea to consult a trial attorney to discuss how each option may influence your case.

Do All Court Cases Have a Jury?

No, though most criminal cases offer the constitutional right to a jury trial. When a case goes to trial, the parties sometimes have a choice between a bench trial or a jury trial. Not all types of cases have this option. Small claims and juvenile criminal cases do not have jury trials.

In a criminal case, the defendant has the right to waive a jury trial, but the state must agree if the defendant wants a bench trial. If a defendant prefers a bench trial, the state will accept it.

Court Decisions in a Criminal Case vs. a Civil Case

Deciding between a bench trial and a jury trial can depend on what you must prove in the case.

In a criminal trial, the prosecution has the burden of proof. Whether the case is a felony or a misdemeanor, the prosecution must show the defendant committed the crime beyond a reasonable doubt. This is a very high bar. A criminal defense attorney has no burden of proof but must refute elements of the prosecution’s case.

In a civil trial, the plaintiff has the burden of proof. The standard is a “preponderance of evidence,” meaning more likely than not, or about 51%. A civil defense lawyer may need to disprove parts of the plaintiff’s case and prove the defendant’s side of the case.

Bench Trials

In a bench trial, the judge decides the facts of the case. Otherwise, the case proceeds just as it would in a jury trial. Self-representing parties may find it easier to present a case before a judge than a jury because they will have fewer eyes watching them.

In a bench trial, you avoid jury selection (voir dire), making an opening statement before a jury, and closing arguments for the jurors. These can be intimidating for someone unfamiliar with court procedures.

Pros of a Bench Trial

The advantages of a bench trial are:

• Judges know the law. There is less need to walk judges through every step of a civil case or criminal trial since they know how attorneys establish their cases.
• Judges are less likely to be biased. Especially in civil cases, judges have little reason to be predisposed to one side or the other. Judges must put aside personal opinions and focus on the facts in the case.
• Bench trials go faster. Since judges need less explanation, civil litigation moves more quickly when presented to a judge than when presented to a jury.

Cons of a Bench Trial

The downsides to a bench trial are:

• Judges know all the law. Although judges may loosen rules of evidence in a bench trial, they will not abandon them. They give self-represented (pro se) litigants what help they can in court but will not bend the rules of criminal or civil procedure.
• Criminal defendants may feel very alone in a bench trial. Judges often begin in the prosecutor’s or DA’s office. With police, prosecutors, and the judge, a pro se criminal defendant must be sure of the outcome if they plan to defend themselves.

Jury Trials

In a jury trial, the jury selection process identifies six to 12 jurors, plus alternates, to decide your case. Jury selection, or voir dire, is time-consuming in the jury trial process. Self-represented litigants should get legal advice during voir dire since it is a complicated procedure for the layperson.

Jury trials are not a guaranteed part of the civil court process. In a civil trial, at least one party must pay for the jurors and make the initial deposit on the case.

In a criminal matter, the state pays for the jurors. The courts presume defendants want a jury trial, and defendants must waive their constitutional right to a jury. The judge or the state can deny the waiver because a jury trial is so important in a criminal case.

Pros of a Jury Trial

The advantages of a trial by jury include:

• Jurors don’t know all the rules. Although the judge and opposing counsel can prevent improper evidence and questions from getting through, they cannot catch all of them.
• Jurors listen to their emotions. In civil trials, especially personal injury cases, having a sympathetic jury can be helpful for pro se litigants. Emotional appeals may be more effective.

Cons of a Jury Trial

The disadvantages for some defendants include:

• Jurors can react to emotions or bias. Criminal defendants charged with gruesome crimes may fare poorly with juries, as may unsympathetic parties in civil cases, such as corporations.
• Jurors don’t know the law. They must have legal issues explained in careful detail, a task often beyond the ability of pro se litigants.
• The court process for jury trials includes voir dire at the beginning and jury instructions at the end. These are legally dense procedures that need help from a professional.
• Jurors can add to the cost of civil litigation. Criminal defendants don’t have to pay this expense, but civil litigants do.

How To Decide Between a Judge or Jury in Your Case

You and your lawyer may consider factors such as:

• The complexity of the technicalities, laws, or legal defenses in your case
• Whether your case involves a powerful emotional component versus strict legal arguments
• Whether you might be likely to face bias
• How quickly you want a resolution for your dispute

The choice between a jury or bench trial is one of many impactful decisions you’ll need to make during a court case. Having a clear strategy behind these decisions may help raise your likelihood of winning the case.

Can I Choose the Judge or Jurors for My Trial?

While you can choose jurors in the jury selection process, you can’t pick a judge in a similar way. The state — not the parties — selects judges.

At the start of a jury trial, the court will assemble a pool of potential jurors. It will call eligible community members to attend the jury selection process. Each side can question them to assess potential bias or conflict. You may reject jurors due to an explainable cause. You also have a limited number of peremptory challenges, which is when you reject a juror without explaining the reason.

In contrast, the government appoints judges to their position in court. Judges have already been approved to serve as a decisionmaker in the courtroom based on their knowledge of the law and legal system. Therefore, litigants and criminal defendants generally would not need to scrutinize whether a judge will be fair and impartial before every trial. Rather, they may address any specific concerns about a judge through recusal, disqualification, or appeal.

Courts assign judges to cases according to their own assignment systems. The plaintiff, prosecutor, or defendant can’t ask the court to assign a particular judge to their case.

On the other hand, multiple courts may have jurisdiction over a case. While you still can’t choose the judge themselves, you may have reasons why one court may be more favorable for you. You may choose to file in a particular court or motion to change the venue as appropriate.

Jury Trial Procedure

After jury selection, the trial court will allow each side to make an opening statement. The opening statement often consists of each side telling the jury what the case will show. The counsels present the facts of the case and introduce factual issues at stake, following the rules of evidence.

After the opening statement, one of the parties, usually the plaintiff, will begin their case-in-chief. This is the central part of the case in which both parties introduce evidence through witnesses or written documentation. The defendant also presents their case in chief.

After each party completes its case-in-chief, each party may introduce rebuttal testimony. Rebuttal evidence is any evidence admitted by the court. Parties often use rebuttal evidence to refute the evidence previously presented or acknowledged by the other party. It is much more limited in scope than the evidence presented in a case-in-chief.

Once both sides have finished presenting all their evidence, each attorney will make a closing argument. This is the last chance for the attorneys to address the jury. The closing argument is where the attorney summarizes the facts of the case, evidence, and testimonies. It is where attorneys can attempt to crush opposing statements.

Jury Verdict

Before or after the attorneys’ closing arguments, the judge will provide instructions to the jury. These instructions often contain guidelines on applicable laws as applied to the issues of fact in the case. The jury will use the judge’s instructions to arrive at a verdict. 

When rendering a verdict, the jurors should keep an open mind and consider evidence from all sides. They must pay attention to the degree of proof required for the court to reach a verdict. 

In criminal trials, the prosecution must prove the defendant guilty beyond a reasonable doubt. In a civil case, a party has to prove a charge by a preponderance of evidence.

Court Etiquette During Jury Trial

Because the outcome of your trial can depend on what kind of impression the jurors have of you, it is crucial to adhere to specific court rules to make sure everyone in the courtroom has the most favorable opinion of you. Do your best to:

• Be on time: Many judges and juries consider it rude if you are late. You must be prompt in the mornings and return on time from breaks and lunch.
• Communicate with notes: Use handwritten notes when communicating with your attorney. Talking during a trial may be distracting for the jury, the judge, and your attorney.
• Stand up when the judge and jury enter or leave the courtroom: This is a long-held rule of courtesy and respect.
• No eating, drinking, or chewing gum: Most judges prohibit any eating or drinking inside the courtroom. Keep food and drinks outside the courtroom before and after breaks. Judges consider chewing gum disrespectful and it can look bad in front of a jury.

Understanding the rules of law and trial procedures allows you to be mindful of the process and ensure a fair verdict.

When You Need an Attorney

If you need help understanding the legal process and rules of evidence, you should have an attorney represent you at trial. You should have an attorney in any court case where your liberty is at stake. If you have legal questions about a civil or criminal case and need a trial lawyer, contact a criminal or civil attorney.