# Why aren't there more bench trials? Or, is our justice system based on deception and stupidity? **URL:** \ **Category:** Great Debates\ **Created:** [January 6, 2011, 11:32pm UTC](https://boards.straightdope.com/t/why-arent-there-more-bench-trials-or-is-our-justice-system-based-on-deception-and-stupidity/566678 "2011-01-06T23:32:03Z")\ **Posts on this page:** 7\ **Page:** 3
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [January 10, 2011, 5:50pm UTC](https://boards.straightdope.com/t/why-arent-there-more-bench-trials-or-is-our-justice-system-based-on-deception-and-stupidity/566678/41 "2011-01-10T17:50:33Z")
FWIW, I was a prosecutor in a large county for six years, most of that in the felony trial division, and I’ve been a muni court magistrate for just over nine years. Judges and magistrates are randomly assigned to cases here in Ohio. In my experience, savvy criminal defense lawyers will seek a jury trial if (1) the assigned judge has a reputation for being pro-prosecution, OR (2) if the evidence is such that a conviction is likely before virtually any judge. They will ask for a bench trial if (1) the judge is thought to be pro-defense, OR (2) the judge is thought to be fair-minded, and the lawyer or her client want to avoid the time and expense of a jury trial, OR (3) the judge is thought to be fair-minded, and the facts of the case are particularly shocking or heinous (juries being thought of as more likely to be vengeful in terrible than your average seen-it-all judge). Of course, every judge is not perfectly understood by every lawyer, and there will always be cases where a very-well-understood judge will nevertheless surprise you. Death penalty cases in Ohio must be heard either by a jury, or by a panel of three randomly-assigned judges of that court. This is because we don’t want any single individual to have the power of life or death over a defendant. Even the governor is advised by the state parole board in considering requests for commutations or pardons of capital felons. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 10, 2011, 5:52pm UTC](https://boards.straightdope.com/t/why-arent-there-more-bench-trials-or-is-our-justice-system-based-on-deception-and-stupidity/566678/42 "2011-01-10T17:52:21Z")
What’s the relative difference in defense cost between a bench and jury trial? I had always assumed that a defense attorney would put on basically the same evidence in either case. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [January 10, 2011, 6:05pm UTC](https://boards.straightdope.com/t/why-arent-there-more-bench-trials-or-is-our-justice-system-based-on-deception-and-stupidity/566678/43 "2011-01-10T18:05:53Z")
The evidence will be much the same, all things being equal, but defense counsel, depending on his courtroom tactics or individual style, is less likely to make appeals to emotion in bench trials, or to resort to showmanship or grandstanding. Jury trials can cost hundreds or even thousands of dollars more than bench trials, depending on length, both for court costs and attorney fees. ---
**Author:** ![Flipshod](https://avatars.discourse-cdn.com/v4/letter/f/f19dbf/32.png) [@Flipshod](https://boards.straightdope.com/u/Flipshod)\ **Post date:** [January 11, 2011, 10:20am UTC](https://boards.straightdope.com/t/why-arent-there-more-bench-trials-or-is-our-justice-system-based-on-deception-and-stupidity/566678/44 "2011-01-11T10:20:43Z")
> [@Spavined\_Gelding](#): > > Just maybe the people who work in the law business want to get the best outcome for the people who hire them to do the heavy lifting in trials. Maybe those people know through long and some times sad experience that judges tend to become jaded and have already heard every argument that could possibly be made. > > In criminal matters maybe they know from long and some times sad experience that judges tend to be old prosecutors who know the police and have formed a pretty firm favorable opinion about the competence and credibility of the police in general and maybe particular police officers. > > In civil matters maybe they know from long and some times sad experience that judges have had enough experience to have formed a firm opinion about the value of the injury that is being claimed. > > Given all of that maybe a person accused of crime or seeking money damages would be well advised to seek a jury trial. Not because juries are stupid but rather because it is unlikely that jurors are jaded or have already formed general or specific judgment about the important parts of the defense or claim. > > Of course there are some kinds of cases that have to be tried just to a judge – divorce, child custody, real estate ownership and foreclosures, for instance. The jaded judge is the reason. The judges I stood before have seen so many criminals, mostly guilty, and they are all very pro-prosecution. I would never advise a criminal to waive the right to a jury. And in the civil context, with a jury you have the chance to get a really high award. My judges were also pro-defendant in civil cases. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [January 11, 2011, 5:22pm UTC](https://boards.straightdope.com/t/why-arent-there-more-bench-trials-or-is-our-justice-system-based-on-deception-and-stupidity/566678/45 "2011-01-11T17:22:47Z")
G.K. Chesterton’s very short essay on the value of juries is well worth a read: [http://www.chesterton.org/gkc/essayist/12men.html](http://www.chesterton.org/gkc/essayist/12men.html) ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [January 11, 2011, 5:48pm UTC](https://boards.straightdope.com/t/why-arent-there-more-bench-trials-or-is-our-justice-system-based-on-deception-and-stupidity/566678/46 "2011-01-11T17:48:37Z")
> [@AK84](#): > > It is a established fact that Juries acquit more than Judges. Perhaps that’s true for the UK, but it is not apparently so cut-and-dried in the US - > [@](#): > > Using data from the Administrative Office of the U.S. Courts, Leipold found that, since 1946, federal juries and federal judges have convicted defendants at almost the same rate: 75 percent by juries and 73 percent by judges. > > But barely a year after the introduction of federal sentencing guidelines, judges and juries began heading in different directions. In the 14 years from 1989 through 2002, the conviction rate of federal juries increased to 84 percent, while that of federal judges decreased to 55 percent. In 2006, jury conviction rates exceeded bench rates by 25 percentage points (89 percent to 64 percent, respectively). [Cite.](http://www.abajournal.com/magazine/article/judge_v_judge/) Regards, Shodan ---
**Author:** ![Spectre\_of\_Pithecanthropus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spectre_of_pithecanthropus/32/12343_2.png) [@Spectre\_of\_Pithecanthropus](https://boards.straightdope.com/u/Spectre_of_Pithecanthropus)\ **Post date:** [January 19, 2011, 2:47am UTC](https://boards.straightdope.com/t/why-arent-there-more-bench-trials-or-is-our-justice-system-based-on-deception-and-stupidity/566678/47 "2011-01-19T02:47:03Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It’s a bit more complicated than that. Jury trials are the default for criminal cases, but the _defendant_ doesn’t need to meet any criteria to waive trial by jury. If he wants a bench trial, he gets one (at least in the US). This is news to me. I thought both sides had to agree to the bench trial, and for the reasons mentioned above, the prosecutor may have good reasons for preferring a jury trial. Good thing I’m not a lawyer, or I would have a platoon of former clients pursuing me with papers for malpractice actions. [Previous page](https://boards.straightdope.com/t/why-arent-there-more-bench-trials-or-is-our-justice-system-based-on-deception-and-stupidity/566678.md?page=2)