Judge or Jury Trial?

Many clients we represent have no familiarity with the criminal justice system. I always tell them this is not a bad thing, or something to be ashamed of. Whatever their profession happens to be, I usually remark something to the effect of: "If I were  to come to you in need of advice on what my options are if placed in a situation where I needed your assistance, I would trust you that you were giving me sound, and solid advice, right?"

As such, I tell them they should not be ashamed or afraid to ask questions, and it is my job to explain all options presented before them. It is no different when practicing criminal defense. Most of the clients we represent rely on us to provide them with whatever options we can employ, and also, for the most part, want our opinion on what they should, and how they should move forward with a disposition of their case.  If an individual does not want to accept a plea bargain, regardless of the offer made by the District Attorney, I am not an attorney who will basically force a client to plead guilty and forego a trial (either a judge or jury).  

A trial before the court, known most commonly as a "TBC" (or a "Bench Trial" in most courts around Texas) is one option to employ if an individual wants to proceed with a trial. There are a variety of factors in regards to whether why any individual, given the facts of their case, may want to have a Judge ("Bench") or Jury trial. I also have a separate blog pertaining to a situation I incurred at one point (LOCATED HERE), explaining how I find it disconcerting how District Attorney's have the right, in Texas, to not agree to "waiving" a Jury, therefore not allowing the accused the opportunity to let a fair, and impartial Judge, hear and decide the case on the merits. A question often asked when someone opts to go to trial, is whether they should elect to have their case heard and decided by a judge or jury.  In Texas, the District Attorney has the opportunity to block the accused from having their case heard by a Judge in what is called a Bench (or Judge) Trial.


A Trial Before the Court ("TBC"), or a bench trial, is basically when the accused elects and is able, assuming the District Attorney allows the accused to waive their right to have a jury, you ultimately will have your case entirely decided by a Judge. A Jury plays no part in the proceedings whatsoever.  It should be noted, in any Trial, there is a guilt-innocence phase, and if the accused is convicted, it proceeds then to a punishment phase.  If a "TBC" is elected by the accused (and thereby no Jury is present throughout the duration of the proceedings), then both the Judge would decide the "guilt-innocence" phase, as well as the punishment phase. In a Jury Trial, however, the accused can elect to have the jury assess "guilt-innocence" - but before the trial starts, they have the option of electing whether the judge, or the jury, will decide punishment, in the event a conviction is the result. 

There are many reasons to elect a "TBC" in lieu of a jury trial, the most likely of which is that Judges usually know and conceptually understand the law applicable to the case, and apply them appropriately to the facts heard through testimony and exhibits presented at Trial. Judges also are always reluctant to be overturned later by an appellate court, so often they try to decide the case truly on the merits and law applicable to the facts. It can often be the case where, as an attorney, you feel your client (the accused) should testify at the Trial, but he may have a prior criminal history that may come into play upon cross-examination, that may contaminate the jury panel, and would also likely lead to the exclusion of the defendant testifying at their Trial.  However, Judges usually can (in most instances) can, for the most part, set aside these prior instances related to convictions, etc. - and can make a ruling based on the facts, without having their perception skewed by prior bad acts, whether through prior convictions, reputation, or general character testimony.

However, in a Jury Trial, the Jury is the exclusive "trier of facts" of the case - not the Judge. In that same scenario, the Judge instructs the Jury on what the law is, and they can apply it accordingly as how they feel the evidence, testimony, and exhibits permit. I usually tell jJury panels that, if they notice, when the Judge enters the courtroom - we all rise. And I explain that is because he is supreme and exclusive in delivering to the Jury the law applicable to the case and facts they will hear. I also note to them, how when they enter the room, everyone also rises - and this is because they are just as important as the Judge, in that they will take the legal instructions given by the Judge, then apply the facts and testimony heard at trial when determining the outcome of the case.

Should I have a "TBC" or a Trial By Jury?

First, you have to weigh the facts of the case, what the defense may be, whether any priors criminal convictions or behavior may or may not come into play, (this would be pertinent if you plan on having the defendant testify and he has prior criminal felony convictions and/or prior convictions for "crimes of moral turpitude" that may be on their record from some point in their past history.

It is also imperative that the attorney be skillful enough to properly assess who the Judge is. I routinely tell those I represent, that as a general rule, Judges do not get re-elected by delivering "Not Guilty" verdicts. It seems that in the past, with cases I have worked on specifically, Judges that have either a) just been re-elected; b) have been re-elected to a higher position; or c) judges who are seeking another term - have a greater likelihood of possibly being objective and may not hesitate as much if they truly believe a "Not Guilty" verdict is warranted. However, all that being set aside, Judges are usually VERY wary of getting reversed on appeal if they clearly apply the law incorrectly to the facts of the case. It can help if they know the trial attorney is known to be prone to filing a "Motion for a New Trial" and/or properly filing "Notice of Appeal" following a "Guilty" verdict.  Also, if a Judge has a reputation as being pro-prosecution (or is an former District Attorney) then you may want elect to have your case heard by a Jury. However, some former District Attorney Judges hold the state to possibly even a higher burden than other Judges, in that they know what is needed, and what should be expected, to justify a "Guilty" or a "Not-Guilty" verdict following hearing the testimony at Trial.

Second, it also may depends on what your local Jurors are like.  Some counties, like Williamson County and Collin County, have the reputation of having very conservative Jurors for the State. Other counties, on the other hand, such as Travis County or Dallas County, have reputations of being pro-friendly Defense Jurors.

Third, it could also depend on what type of charge is alleged. If you are charged with a 3(g) offense (you can read the statutory portion related to 3(g) offenses HERE), which would include an allegation that a deadly weapon was used, or in a case that may involve sexual allegations, if you elect to have the case heard by a Judge, and he ends up convicting the Defendant, in Texas the Judge does not have the power to grant probation (because it is a 3(g) offense - and in Texas, probation can only be granted from a Jury). However, in the same scenario, a Jury can. I have actually had one Judge tell me that that portion of the law should be changed, because it essentially serves as a major deterrent to those who would opt for a "TBC" - but instead elect to have a Jury Trial because of the risk involved with the inability to possibly obtain probation from a Judge. 

Why would Defendants elect to have a Bench Trial?

I always view my job, as an attorney, is to advise a person of their options, as best that I possibly can.  IT IS NOT, HOWEVER, TO MAKE DECISIONS FOR SOMEONE.  I always tell people, it is their life, not mine, and they ultimately have to make the decision, based on the facts and the nature of the case that is being considered. In a DWI case, for example, I have NEVER advised a client to opt for a "TBC" Trial - in that Judges are not very likely to deliver "Not Guilty" verdicts in such cases. This is not to say that I wouldn't, or I won't, in the future if the facts and situation dictate. I have, however, done many "Motions to Suppress" - and have had many granted. In a DWI case, or any case, for that matter, as a general rule, I like to think you can count on the Judge to follow the law accordingly. The converse to that, however, is that a Jury is very much an unknown. I tend to think Judges can look past certain elements that could taint potential Jurors, such as prior convictions, etc. As well, Judges do not like when a Defendant appeals a certain ruling, and their verdict is ultimately overturned. Be that as it may, the accused ultimately makes the choice on which option to employ.  

One reason why a Defendant may opt for a "TBC", in some instances, especially for those who are incarcerated, is that it does allow for a speedier resolution to their case. Bench Trials are almost always heard in a quicker fashion, regardless of the venue (or county involved). This being the case because Jury Trials can be lengthy, and every court can only have so many Jury Trials in any given year. I have had some Jury Trial settings that were postponed, simply because not enough Jurors showed up for Jury Duty. 

Another consideration would be that a "TBC" imposes a lot less stress on the Defendant, than a Jury Trial might. For example, I would say most "Trials Before the Court" usually can be conducted in a day or less, especially if the case is a misdemeanor.  However, even a routine DWI jury trial, especially one, for example, that involves a blood draw, could last anywhere between 2-4 days. Without a Jury there is no voir dire (Jury selection), no jury charge, no need to constantly excuse the Jury for evidentiary rulings etc, no need to wait while the Jury deliberates, etc.

 As well, many people are afraid of being "judged" by their fellow peers, and do not want the stress that this imposes. Bench Trials, for the most part, are far less formal, and can be less stressful overall, for the general person accused. Often, people are also afraid, conceptually, of the dynamics of what an actual Jury Trial entails. It can be a hard thing to grasp, in that not many people openly want to be put on display, judged by the public, cross-examined harshly by prosecutors, etc. and possibly have their character and truthfulness impugned in front of a "Jury of their Peers."

Regardless, the ultimate choice is up to the Defendant, the accused, to make the ultimate decision. I try to make the process of a Jury Trial as painless as possible, mainly through thorough preparation, and to try and fully portray an explanation for how the entire process works. In the situation where a District Attorney will not waive for the accused to opt for a "TBC" is one that I feel strong feelings about. You can read more about why I hold this believe, as I have written HERE. In my opinion, it is basically the District Attorney conveying to the Judge that they do not trust them to actually follow the Law and apply it properly to the facts of the case. If I were a Judge, this would bother me greatly - and it would offend me to the extent that a District Attorney would think that I would not follow and apply the Law correctly the facts and testimony that is heard. However, that is a different situation in its entirety - because ultimately, if the State does not agree to "waive" the ability of going to a Judge for a "TBC" to hear the case, then that leaves only option available: a Jury Trial. Which, even still, is a very valuable right, probably best said by the following quote by Thomas Jefferson (LINK LOCATED HERE):

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

-Thomas Jefferson to Thomas Paine, 1789.