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 judge trial 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 possession of cannabis. You may demand a jury trial, and 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.

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 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. The decision on whether or not to pick a jury, versus having a bench trial, belongs solely to the individual, not the attorney. The attorney can only give advice 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. 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 particular quirks, traits, biases, belief systems and ways of doing things. The old adage "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 believed 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.

Law vs. Facts

So for example, if you are charged with a DUI, and you refused the chemical testing by breath, blood or urine, and you have a Judge that is known, or believed, to be favorable to police officers in assessing credibility, you have to ask: if you take everything that the officer says as true, will it amount to proof beyond a reasonable doubt, or 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, which may result in a finding of guilty by the court, by all means take 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 need a jury; 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.

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 probable should waive the jury, because 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. One must "know the audience" in order to determine whether or not one’s defense will be accepted favorably.

Verdict Must be Unanimous

The reason why this matters is this: 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 decides whether or not the State has proven your guilt beyond a reasonable doubt in a criminal case, or in a civil case, whether or not 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 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, or you 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 (800) 996-4824 to speak by phone or to schedule a face-to-face, absolutely confidential, free consultation with us today.