What is it? Do I get one? Do I want one?

You have been charged with a crime, you know that you did not commit the crime and your lawyer has attempted to work with the other side but the other side refuses to drop the charges. The prosecution insists that if you want the matter to be resolved then you must accept the plea offer. So now what? Must you accept the plea deal? What are your options? One option is to take the case to trial. What does it mean to go to trial? Is this a trial in front of a judge or jury? Do you have a choice? The answer is, it depends.

The scenario above describes one situation where it might be in your best interest to take a case to trial.  If the prosecution is offering the maximum penalties to resolve the case you might also find it beneficial to go to trial.

In a criminal case, a trial is an evidentiary hearing where the facts of the case and the evidence are presented to the trier of fact (either a judge or a jury). The Judge or the Jury will determine whether the prosecution has proven its case.  It is up to the prosecution to prove each element of the crime beyond a reasonable doubt. It is not the Defendant’s burden to prove that he/she did or did not commit the crime.

Bench Trial or Jury Trial: The Differences

A trial can either occur in front of a Judge (Bench Trial) or a Jury (Jury Trial). The difference between the two types of trials is who is listening to the evidence being presented.  In a bench trial the judge will listen to the evidence, will make determinations of fact and also make rulings on the law. In a jury trial, the facts and evidence in the case are presented to a jury; it is the jury who decides whether or not they believe the evidence. It is the Jury who determines if the prosecution has satisfied its burden. Similarly, in a jury trial, it is still the Judge who makes rulings on the law.

If you are charged with a crime you have a right to a trial in every criminal case, however this is not to be confused with the right to a trial by jury. Not every offense carries with it a right to a jury trial. Second-degree misdemeanor crimes where the prosecution is not seeking to adjudicate or imprison do not have a right to a jury trial, instead the judge will hear your case and it is the judge who will make findings of fact regarding the evidence and rulings on the law. Likewise, Juvenile trials are only conducted in front of a judge. This is true even if the juvenile is charged with a felony offense.

Another distinction between jury trials and bench trials is the amount of time required to conduct the hearings. In a jury trial, each side will present an opening statement, the prosecution will present its evidence first, then the defense will present evidence and each side will give a closing argument. As discussed previously, the burden is on the prosecution to prove its case; therefore the defense does not have to give an opening statement or present evidence. In a bench trial the parties usually choose not to present either an opening or a closing argument. Depending on the facts of the case and the criminal charges, a jury trial can last anywhere from one day to several months. Bench trials can usually be conducted within in a matter of hours.

Waiving a Jury Trial

In some situations the right to a jury trial can be waived.  For example, if you are charged with a first-degree misdemeanor such as a Petit Theft you are entitled to have your case heard by a Jury. However, you or your attorney may determine that it would be best if the Judge listened to the evidence that the prosecution has against you instead of strangers from the community. Whether your right to a jury trial can be waived will depend on a number of factors including: the degree of crime charged, the severity of the allegations against you and the strategic advantage to waiving a jury trial. An example of this is if you are charged with a first degree misdemeanor offense such as First Degree Petit Theft, while you have the right to have the jury hear your case, you can waive that right and instead have the judge conduct a bench trial. Keep in mind that the right to a jury trial cannot be waived unless both parties agree to do so. This is because both the prosecution and defense are entitled to a jury trial. This means that if your attorney wants a bench trial but the prosecution does not, the judge cannot set the trial for a bench trial, instead your case must be heard by a jury.

Voir Dire

Jury trials begin with a selection process called Voir Dire, where both parties get to ask the prospective jurors questions and then selects from that panel the individuals whom each would like to sit and listen to the case. The process is a little more complicated than implied however; at the end of voir dire the parties will be left with their jury panel. The number of jurors depends on the crime that you are charged with. In Florida, you are entitled to 6 jurors in in a criminal case or 12 jurors if that criminal case is a capital offense.

Kenneth Padowitz, P.A.

Whether or not you want to take your case to trial will depend on a number of factors. The examples above are just that – examples. Remember that each case is unique and must be reviewed thoroughly in order to make an informed decision. If you are charged with a crime, it is best to hire a criminal attorney who can review your case with you and advise you accordingly on what options are available to you.

Ken Padowitz has tried over 400 Jury Trials and 35 First Degree Murder Trials. As an Adjunct Law Professor for 16 years, he taught Trial Advocacy to Law Students. He has lectured on Trial Advocacy throughout the United States and Florida and appeared on National Television hundreds of times during the broadcast of Major Trials.