Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 4, #4©

Issue: Going bench - choosing between a jury or non-jury trial.

Now it is a terrible business to mark a man out for the vengeance of men. But it is a thing to which a man can grow accustomed, as he can to other terrible things. . . . And the horrible thing about all legal officials, even the best about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are quite good), not that they are stupid (some of them are quite intelligent), it is simply that they have got used to it.

Strictly, they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop. Therefore, the instinct of Christian civilization has most wisely declared that into their judgments there shall upon every occasion be infused fresh blood and fresh thoughts from the streets. Men shall come in who can see the court and the crowd, and the wasted faces of the wastrels, the unreal faces of the gesticulating counsel, and see it all as one sees a new picture or a ballet hitherto unvisited. . . .

Our civilisation has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men.
G. K. Chesterton, 1917.

A defendant has a constitutional right to a jury trial. US Constititution, Amend VI; NY State Constitution art 1, § 2; art 6, § 18. The exercise of this right is a major decision: whether to go with a jury trial, or for a trial before a judge. In the New York State court system, the choice whether to "go bench" is reserved to the defendant, subject to the court's approval. CPL 320.10(2).

If the court determines that the waiver is intended as a stratagem to achieve an impermissible advantage, the waiver may be denied. For example, a defendant facing a joint trial with codefendants who elects to go with a bench trial may be denied. See People v Williams, 75 AD2d 717, 427 NYS2d 114 (4th Dept 1980).

Sometimes the defendant doesn't have a choice; if the charge is for a violation (as opposed to a crime) or the defendant is entitled to mandatory Youthful Offender status, CPL 340.40(7), there is no absolute jury trial right. In New York City, there is no jury trial right where the top count is a class B misdemeanor; upstate, the statutory right to jury trial exists with a B. CPL 340.40(2). Handling a Criminal Case in New York, § 18:64.

A defendant who waives jury trial must do so in open court. The waiver must also be in writing. The defendant waving jury trial must be fully aware of the consequences of the waiver. CPL 320.10(2); People v Livingston, 184 AD2d 529, 584 NYS2d 175 (2d Dept 1992); Handling, § 18:67.

Defense counsel should carefully go over with a defendant the pros and cons of jury waiver. Some considerations: Has the court already tipped its hand as to the defendant's case? Are the facts of this case the kind that a jury would be sympathetic to, or repelled by?

Is the defense based on technical arguments, or one raising subtle legal distinctions that a judge might appreciate but a jury would not? Is the defendant's strategy not so much to get a not guilty verdict but a lesser included offense? If so, a bench trial may be more appropriate.

The trial procedure with a bench trial may be abbreviated. For example, an opening statement by the prosecutor is mandatory in a jury trial, and is permissible in a bench. CPL 320.20(3)(a); CPL 350.10(3)(a) (misdemeanor trials). Some attorneys will waive the opening statement at a bench trial: for the most part, this is inadvisable.

The judge's verdict need not be immediate, but cannot be unduly delayed. CPL 320.20; CPL 350.10; People v Santana, 232 AD2d 663, 649 NYS2d 456 (1st Dept 1996); Handling, § 18:85.

One significant affect of foregoing a jury is that on appeal, the issues that can be raised by the defense are circumscribed. People v Walker, 175 AD2d 146, 572 NYS2d 36 (2d Dept 1991); People v Concepcion, 266 AD2d 227, 697 NYS2d 697 (2d Dept 1999). .

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