There are a few fundamental constitutional rights for a criminal defendant.
The right to a lawyer.
The right to confront witnesses.
The right not to incriminate yourself.
And the right to a jury trial.
One disappointing part of law school was learning how limited these rights are in real life. For example, you can be under criminal investigation for years and be interviewed by the government repeatedly—all without a lawyer. The right to confront witnesses is severely limited by the exceptions to the hearsay rule. Sure, you don’t have to testify against yourself, but the government can use your own words in emails and text messages against you as much as it would like.
The right to a jury trial does have fewer restrictions than some of these other rights. It applies in federal court (through the Seventh Amendment) and state court (through the Fourteenth Amendment). However, you don’t have a right to a jury trial for less serious crimes, usually defined as having a potential penalty of less than six months in jail.
Despite these limitations, a defendant has the right to a jury trial. If you have this right, then shouldn’t you be able to waive it?
Think of it this way.
You have the right to a lawyer. But if you decide you don’t want a lawyer, you can proceed pro se.
You have the right to confront witnesses. But your lawyer can decide not to ask a witness questions.
You have the right not to incriminate yourself. But you can decide to confess.
When it comes to a trial right, what happens if a defendant decides he doesn’t want a jury trial? Can he unilaterally demand a bench trial instead?
What Is the Rule?
Rule 23 of the Federal Rules of Criminal Procedure is the relevant rule. Here’s what it says:
(a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless:
(1) the defendant waives a jury trial in writing;
(2) the government consents; and
(3) the court approves.
As you may have noticed, the government must consent to the waiver. That’s not the case for any other constitutional rights. If the government doesn’t agree that a defendant gets a bench trial, then the court will generally require a jury trial. Plus, even if the government and the defendant both agree, the judge could deny the request, since Rule 23 requires court approval of any waiver.
There is an exception to this rule, however. In Singer v. United States, 380 U.S. 24 (1965), the Supreme Court rejected the defendant’s argument that this prosecutorial veto infringed on his Sixth Amendment rights. The Supreme Court held that
The Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal under which the Constitution regards as most likely to produce a fair result.
The Singer Court also held that Rule 23(a) does not require that the Government explain why it was withholding its consent to a bench trial.
Why Would a Defendant Want a Bench Trial? (And Why Would the Government?)
As a defense lawyer, I generally prefer a jury trial.
First, we get to pick it (sort of) whereas a judge is randomly assigned to the case. My client gets some say in who is on the jury. Given how powerless it is to be a criminal defendant, this is an important part of the process.
Second, a jury of 12 people means that I only have to convince one of them that there is reasonable doubt to have a hung jury and a mistrial. That’s not an acquittal, but it’s a lot better than a guilty verdict.
Third, judges are people too. They have biases and quirks. They don’t pay attention sometimes. Judges are not necessary any more impartial than typical jurors.
That said, I may want a bench trial in a complex white-collar case where I have a very technical defense. Let’s say our defense is that my hedge fund client had a reasonable belief that an accounting rule permitted a certain decision. But that decision meant that hundreds of elderly investors lost their life savings. I may think that a judge will be able to separate the legal merits of the defense from the very bad outcome for the investors.
I would also consider a bench trial if the case involves a high-profile matter that affected a community generally or perhaps a local government official whose downfall is a matter of intense public opinion.
The government may not want a bench trial because the prosecutor thinks the presiding judge is more likely to find the defendant not guilty or may be sympathetic to the defendant’s arguments. The prosecutor may think that bringing the appearance of the United States Government to a courtroom will have a powerful effect.
Of course, for the government to say no to a request for a bench trial sends a message that the prosecutor doesn’t trust the judge, and that’s a dangerous position as well.
Exception to the Rule and a Recent EDNY Case Raising the Issue
What if the government refuses to consent? Does it have an absolute right to veto a defendant’s waiver?
The Supreme Court recognized in Singer that “there might be some circumstances where a defendant’s reasons for wanting to be tried by a judge alone are so compelling that the Government’s insistence on trial by jury would result in the denial to a defendant of an impartial trial.” Singer, 380 U.S. at 37. There are also rights to a speedy trial that could be implicated if a jury trial were delayed.
The COVID-19 pandemic has made this somewhat-abstract issue very, very real.
In a recent case in the Eastern District of New York, the defendant Michael Cohn waived his right to a jury trial in a complex white-collar criminal case. But the government wouldn’t consent. Mr. Cohn’s lawyers asked the judge to apply the Singer exception to allow the case to proceed virtually with a bench trial, rather than wait for an in-person jury trial to occur.
As his counsel argued
Under these circumstances, it is unlikely that Mr. Cohn will be able to obtain a jury trial, in a safe environment, for many months if not longer. His constitutional right to a speedy trial and due process of law is impaired by the ongoing delay. The Court’s offer to conduct a bench trial with video-conferencing technology was an innovative proposal that offered Mr. Cohn a pathway to have his case tried in a timely manner. Mr. Cohn seeks to avail himself of this opportunity. Under these extraordinary circumstances, Mr. Cohn submits that the compelling exception noted by the Supreme Court in Singer has been satisfied and respectfully submits that the Court order a bench trial over the government’s objection.
The government’s response was . . . not illuminating. This is the whole response (the prosecutor was really taking advantage of the fact the Singer did not require a reason):
The government respectfully submits this letter in response to the Court’s inquiry at the July 27, 2020 arraignment on superseding indictment in the above-captioned matter as to whether the government would consent to a non-jury trial in view of the ongoing COVID-19 pandemic. Upon due consideration of the relevant facts and circumstances, including the ongoing pandemic and the defendant’s individual circumstances, and pursuant to Rule 23(a)(2) of the Federal Rules of Criminal Procedure, the government does not consent to a non-jury trial in this matter.
The court granted the motion and ordered that a bench trial be scheduled:
The Court declines the Government’s application to stay (or perhaps effectively reconsider) its decision of August 26, 2020. The Court agrees with the observation of defense counsel that “delaying the trial until the end of October increases the risk that the coming flu season combined with a resurgence of the COVID-19 pandemic will curtail the Districts ability to hold any trials.” For this, and other reasons set forth in detail in the August 26 Order, the application is DENIED.
As to the logistical issues raised by the Government, including its anticipation of calling more than a dozen witnesses from various states, and the issues connected with quarantine and travel restrictions — all of which further support this Court’s determination to hold a nonjury trial– these matters may be further and fully discussed at the conference scheduled for September 8, and all reasonable accommodation will be made to ensure that both sides receive the benefit of a fair trial. But for avoidance of doubt, the Government should complete its discovery obligations and begin making arrangements to make witnesses available for trial, with the expectation that the trial will commence as soon as practicable following the conference.
It’s worth noting that a few days after the judge’s order, the government filed a superseding criminal information that knocked down the charges from the original indictment from two (obstruction of justice and unauthorized disclosure of government information) to one (theft of government property). Mr. Cohn pleaded guilty to the single count that same day, suggesting that the change in charges was the result of a negotiation.
Perhaps the court’s order—and the possibility of a virtual bench trial—made all the difference here.