With the recent passing of Washington state’s I-1639 our firearm laws are back in the spotlight. A recent Armed Citizens Legal Defense Network newsletter featured ‘Attorney Question’ asked the following;

What circumstances if any might lead you to ask for a bench trial to have a judge make a finding about criminal charges stemming from use of force in self defense, as opposed to trying the case before a jury? What rationale drives your preference for a jury trial or for a bench trial?

Below is the response I submitted;

There are precious few decisions that defendants actually get to make for themselves during the pendency of a criminal case.

1. Whether to take the stand and testify.
2. Whether to take a plea bargain.
3. Whether to go to trial and, if so, whether to waive their right to a trial by jury.

While our clients do rely on us to give them our opinions and learned counsel, those decisions are ultimately theirs to make.

Demographics & Political Climate Matter

And since there really is no guarantee which individual judge any one of my clients is going to get on any given date, who will be my client’s judge is rarely a consideration for bench vs jury trial. That said, in the current political climate and the demographic area in which I practice (western Washington state), I can’t imagine recommending that a defendant waive their constitutional right to a jury trial and hand the facts of a firearm-related death over to a judge who may be thinking about their re-election campaign.

A Hung Jury May Become A Defendent’s Last Hope

By this time, obviously, the prosecutor has filed charges and believes that a crime has been committed and that the defendant was involved – so the facts of the case are in contest. With a bench trial, there’s only one person who decides the facts; and there are no hung juries in a bench trial. But with a 12 person jury panel, I only need one out of twelve to have a reasonable doubt (to get a hung jury). While a unanimous Not Guilty verdict is always desired, trials can often take a turn for the worse and a hung jury may become a defendant’s last hope (unless they opted for a bench trial). Here in Washington state, whether a judge or jury finds you guilty, it is the judge that crafts the sentence in accord with sentencing guidelines.

Geographic Consideration: Sentencing Rules Vary In Each State

Unfortunately, there are some states where the defendant’s decision to take a judge trial or jury trial determines who decides the sentence if you are found guilty. In Virginia, for example, if a jury finds you guilty, then the jury must sentence you – and the only guidance the jury is given is a sentencing range (like 5 to life). But if you took a bench trial and the judge finds you guilty, then the judge must use the sentencing guidelines which take into consideration a number of factors in determining your sentence.

So in the case of a bench trial (in states like Virginia), you at least know going into a bench trial what type of sentence you will likely receive in the event that the judge finds you guilty. When I practiced in Virginia (over 16 years ago), I found that the vast majority of criminal defendants opted for a bench trial because of that very reason. Here in Washington, the opposite is true. However, the cases that almost invariably go to a jury trial in either scenario would be the class A felonies (like where the defendant is charged with taking the life of another).