Picking a Jury or Bench Trial in Chicago

Suppose that you are a Defendant in a criminal case or you are a party to a civil dispute. You and your lawyer(s) have discussed your options and you have decided that rather than plead guilty or settle, you will take the case to trial and leave the decision on the outcome "in other hands." After all, it is a constitutional right under the 7th Amendment to have your case tried before a Jury of your peers in your community, and every State provides for this right in their Constitutions, as well as in the laws and rules they enact. It is also your right to have the case heard by a single trial judge and to let that judge decide. This type of trial by judge is known as a Bench Trial.

You Have a Right to a Jury Trial

In Illinois, everyone has an absolute right to a jury trial on any felony offense or misdemeanor where there is a possible jail sentence, and one can only be made to pay court fees for a jury after a finding of guilty. On petty offenses punishable by fine only, one may demand a jury trial, but as in civil cases (see below), one must pay court fees in advance with the jury demand. So, let us say that you are charged with a misdemeanor offense, perhaps Retail Theft or DUI or Unlawful Use of a Weapon. You may demand a jury trial and you’ll pay no advance fees. If the Jury finds you to be not guilty, then you pay nothing; if the Jury rules against you, along with the sentence of jail/probation/conditional discharge/court supervision and the fines to be imposed, you will however be assessed numerous court costs, including a jury fee.

If the thought of having to pay a fee for getting a jury trial makes you question whether or not it was your ”right”, consider that whatever fee you are charged is far, far less than the tax dollars spent upon court personnel that must be present, dedicated to only your case while the trial is commencing: the Judge, the Court Clerk, the Court Reporter, the Bailiffs or Courtroom Deputies, as well as the Prosecutor (usually working in a team to two, perhaps three, plus their investigators, clerks and other assistants).These enormous costs are born by the tax payers so that there is effect given to this important Constitutional Right.

Number of Jurors

Petty offenses, such as speeding no more than 25 miles per hour over the posted limit or a local ordinance violation such as failure to pick up after a dog, are covered by the same procedural rules as in civil cases, such as cases involving negligence based upon a personal injury motor vehicle accident. Under those rules, a Plaintiff must file a written demand, and pay the additional fee for the jury along with the initial complaint at the time the action is commenced. A Defendant must file a written demand and pay the fee no later than the filing of his or her answer (which is generally filed after the initial appearance is filed). In the past, the jury would consist of 12 people, as in criminal cases, but pursuant to an amendment of the law in 2015, now civil juries are can be made up of six (6) persons, and if alternates are requested, an additional fee per each alternative juror will be paid. Only in cases that preceded the amendment, where a 12-person jury was paid for, will 12 people be selected, and only upon proof of the payment for the 12 jurors.

Your Decision Alone

The practice of law is not an exact science, it is an art as well. The decision of whether, or not to pick a jury versus having a bench trial, belongs solely to the individual and not to the attorney. The attorney can only give advice in order to aid you in your decision. The attorney cannot decide for you. Of course, you should seriously consider the advice you are given, but you are not obligated to follow it, as the decision is yours alone. So how do you know what to do? How do you decide whether or not your case would best be heard by a jury as opposed to a Judge? There are many factors to consider.

How to Decide About Trial

In our opinion, the first inquiry is: who is the Judge? Judges strive to be fair and open minded on the bench, but they are only people like the rest of us and they all have their own individual quirks, traits, biases, belief systems and ways of doing things. The old saying "a good lawyer knows the law; a great lawyer knows the Judge" is applicable in this area. Does your Judge have a reputation for being "State minded," "Pro Law Enforcement" or for having certain qualms, objections or dislikes for certain offenses as opposed to others? Do you have a Judge that is known to be "good on the facts" (meaning, the Judge keeps an open mind and finds facts based upon the actual evidence in court and rules on credibility of witnesses based upon their demeanor, the other evidence, and the court’s own personal experience as opposed to their station in life, e.g. police detective vs. a defendant)? Is the Judge perhaps a little closed minded in the fact-finding department, but is known to apply the law correctly to a given set of facts? One must know enough about the Judge to decide whether or not to waive a right as important as a trial by jury.

In most cases, the default judgement call is this: if your case has undisputed facts or you are not calling police officers liars in the defense of the case, a Bench Trial is usually favorable, as you are banking on the Judge to rule that the facts do not amount to proof beyond a reasonable doubt. If however the facts are in dispute or if police credibility is at issue, then you may want a Jury Trial to let 12 citizens decide unanimously what the facts are and to then to decide if those facts prove the charges under the law as it was presented to them by the Court in their instructions.

Law vs. Facts

So, for example, let’s say that you have been charged with a DUI and you refused the chemical testing by breath, blood or urine. You did perform some field sobriety tests, which the officer will testify you failed, and the video evidence is of poor quality and adds nothing to or takes away from the State’s case. You have a Judge that is known, or believed to be favorable to police officers in assessing credibility.  You then have to ask: if you take everything that the officer says as being true, will it amount to proof beyond a reasonable doubt of guilt or in a finding of not guilty beyond a reasonable doubt? If the law is on your side, regardless of the officer’s credibility, then by all means, consider waiving the jury. On the other hand, if the facts are at issue and if the officer is believed over other evidence or witnesses, and this may result in a finding of guilty by the court, then by all means consider taking your case to the jury and let them decide the facts.

In essence, if the case must be tried upon the facts and not the law, and your Judge is favorable to the prosecution and police, then you may need a jury.  But if the case can be tried on the law only, and the facts are agreed upon for the most part, then a bench trial might be advisable. In the example that is given, it is our opinion that a Jury Trial would be preferable to a trial by a Judge who might tend to believe the officer was credible. But, if you have a Judge that is known to distrust any testimony that isn’t backed up by the video and if it appears that the poor quality of the video was due to the officer’s use of the equipment, then a Bench Trial may be the best way to get to a Not Guilty verdict.

Know Your Audience

There are some judges that are not shy about calling a police officer’s testimony unbelievable or not credible. If your case depends upon an officer’s lack of credibility and you possess evidence that can attack that credibility, then you probably should waive the jury trial. Depending upon the general demographics of the available jurors in the jury pool, some communities are more “law and order” oriented than others and such a jury might otherwise believe the officer and find you guilty based upon that. Whether or not you get a jury that might find against an officer’s credibility or in his favor is completely random, although it helps to know about the socio-economic makeup of the jury pool. So, one must "know the audience" in order to determine if one’s defense will be accepted favorably. In this regard, we do not always enjoy the “of our peers” part of the 7th Amendment guaranty of a Jury Trial. Of course, life in America has become radically different than during the lifetimes of our Founding Fathers and one’s peers are often not to be found in one’s community.

Verdict Must be Unanimous

The reason why all of this matters is: in a jury trial, in order for there to be a verdict, all 12 jurors in a criminal case, or all 6 in a civil case, must be unanimous in their decision. The jury decides what the evidence is, based upon instructions in the law given to them by the judge. The jury determines if the State has proven your guilt beyond a reasonable doubt in a criminal case, or in a civil case, if your case was proven by a preponderance of the evidence. In a bench trial, the judge decides the facts and applies them to the law, and only one person makes the decision. It is therefore often easier to create disagreement between 12 persons than it is to cause one trained legal mind to be confused.

Discuss Your Choices with our Chicago Criminal Attorneys

Of course every case is different, and you are strongly encouraged to discuss your choice of jury vs. bench trial with an experienced Chicago criminal lawyer. If you are charged with a criminal offense, are being sued, or you wish to sue someone, you need aggressive, knowledgeable, lawyers to represent you, like the lawyers here at Mitchell S. Sexner & Associates LLC. Call us at (312) 644-0444 to speak by phone or to schedule a face-to-face, absolutely confidential, free consultation with us today.

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