Judge or Jury?
BYRON WARNKEN: In most cases, defendants have a right to a trial by jury.
ANDY RADDING: A jury of 12 people who are randomly chosen educationwise, economically, race, religion -- purely at random.
BYRON WARNKEN: In the small cases where you are not facing jail time, generally you are not going to have a right to jury trial. You are going to have to go before a judge. Most of the cases, you can choose judge or jury.
ANDY RADDING: The common precept used to be that a non-jury trial, a judge-only trial, and you would hear it time and again, was "a long guilty plea."
BYRON WARNKEN: Most criminal defense lawyers recommend to their client to choose a jury.
ANDY RADDING: I never felt that way and I have always, in the right circumstance, gone non-jury.
BYRON WARNKEN: The judges have heard the same stories over and over again. The judges are not nearly as persuaded by facts. They are not nearly going to weigh the balance in favor of defendant, as they probably should.
ANDY RADDING: That is interesting. There have been some recent studies that say that the acquittal rate of non-jury trials in the federal system is greater than of jury trials.
BYRON WARNKEN: Jurors are more likely to find reasonable doubt than judges.
ANDY RADDING: This study of the federal system is fascinating and I think justifies those of us who have on occasion gone non-jury.
A Jury of Your Peers
The right to a trial by jury depends on the nature of the offense charged. Petty offenses - often, those punishable by imprisonment for six months or less - don't carry a right to jury trial. And if a minor is charged in juvenile court, these cases are tried by a judge as well.
The Sixth Amendment
Though the U.S. Constitution guarantees a right to trial by jury on more serious offenses, this right also applies in state court where this fundamental right is considered a part of the due process afforded the accused.
Jury Selection: Voir Dire
A jury of your peers must be impartial and unbiased. To guard against juror prejudice, jurors are screened through a process called "voir dire," enabling the judge, and often counsel for the parties, to question jurors on their background. If the answers raise concerns as to bias, either side may challenge a person's ability to serve on the jury, asking the judge to dismiss the prospective juror "for cause". And, just for good measure, both sides get a few "peremptory challenges," enabling them to strike a few people from the jury without specifying a particular reason.
Your Peers Come from Venires
Another factor in determining the impartiality of the jury is the nature of the panel, or "venire", from which the jurors are selected. Venires must represent a fair cross-section of the community; the defendant may establish that the requirement was violated by showing that the allegedly excluded group is a "distinctive" one in the community, that the representation of such a group in venires is unreasonable and unfair in regard to the number of persons belonging to such a group and that the underrepresentation is caused by a systematic exclusion in the selection process. While such a "challenge to the array" is possible, it is rarely asserted.