What Is the Bench Trial Process?

A bench trial is tried to a judge only—there's no jury. Learn how bench trials work in criminal cases and why a defendant might choose to go that route over a jury trial.

By , Attorney · New Mexico School of Law
Updated September 09, 2021

A criminal defendant can take their case to trial before a jury or a judge. A trial before a judge is called a bench trial. Jury trials are more common and well-known in the criminal justice world. This article will briefly discuss how a bench trial works and how it compares to a jury trial.

Jury Trials and Bench Trials

A jury trial typically involves 12 individuals who, after hearing the evidence and legal arguments, will decide whether the prosecution has proved the defendant guilty or not of the charges against him. Their decision must be unanimous. The judge does not decide issues of guilt but rather must rule on the procedural and evidentiary issues, such as who can testify, what witnesses can testify about, and what documents or physical evidence the jury can consider.

At a bench trial, the judge rules on the procedural and evidentiary issues and takes on the jury's role as factfinder. The judge will make the rulings, hear the evidence, and decide whether the defendant is guilty or not guilty.

Whether your trial is a bench or a jury trial, the process followed during the trial should be the same and, if you are convicted, you are entitled to appeal your conviction to a higher court. The court is required to follow the same rules of evidence and procedure at every trial. The judge cannot rule differently in a bench trial than in a jury trial. Because a jury is not present, a bench trial may be a bit less formal than a jury trial, but all rulings must be consistent.

Does a Defendant Have a Right to a Bench Trial?

No. While a constitutional right to a jury trial exists in most criminal cases, the same isn't true with a bench trial. A defendant may waive (give up) their right to a jury trial, but if the prosecutor objects or the judge rejects the defendant's waiver, the trial will go before a jury.

Deciding Between a Jury or Bench Trial

The decision to waive the right to a jury is a weighty one and must be made by the defendant (not defense counsel). A defendant's attorney can advise on the advantages and disadvantages of a bench or jury trial.

Advantages of a Bench Trial

Here are some advantages to a bench trial from the defendant's perspective.

  • A quicker resolution. A bench trial is usually a quicker way to complete a case. It can be scheduled sooner and does not require jury selection or jury instructions, both of which make the trial process last much longer.
  • Dealing with irrelevant and damaging information. In some trials, information might come out that puts the defendant in a bad light. Even if the information is technically irrelevant to the charge and the judge instructs the jury not to consider it, jurors might have a tough time setting aside the information. A judge might be more neutral than a jury and better able to focus on only information relevant to the case. Say there's a good chance witnesses and other information in a case might indicate that a defendant is a gang member or has gang affiliations, even though the alleged crime is not gang related. Any gang connection that comes to light raises concerns that jury members might automatically view the defendant as a criminal and be more likely to convict him.
  • Applying the rules. If the case turns on applying a complex legal rule to the facts of the case, some attorneys and legal experts worry that jurors could have difficulties with the process or even ignore the rule. Here, having a bench trial with a knowledgeable judge versed in the rules might be a better choice. Some experts also believe that juries tend to decide issues on emotion rather than applying the legal rules they've been instructed to use.

Disadvantages to a Bench Trial

Choosing a bench trial doesn't come without risks. Here are some of the disadvantages to bringing the case before a judge and not a jury.

  • One person decides. At a bench trial, the prosecutor has to convince only one person of a defendant's guilt, while at a jury trial, the burden increases to convincing all 12 jurors. Put another way, the defendant may "win" if only one juror holds out for acquittal (leading to a mistrial and perhaps a good plea bargain or a dismissal of the charges).
  • The judge knows all the evidence. At either a jury or bench trial, the judge decides what evidence will be admitted. Prejudicial, irrelevant, or untrustworthy evidence is excluded, and ideally, the jury never hears it. But at a bench trial, where the judge is the jury, it might be hard for the judge to disregard damaging evidence that is technically inadmissible, no matter how conscientious the judge might be.
  • The judge will follow the rules. In some cases, the defense strategy is to hope that the jury will not follow the rules and will acquit on emotional or political grounds instead. For example, if the case has been "overcharged" (heavy charges for a minor offense), the defendant is sympathetic, the charges are unpopular (such as marijuana use or medical use), or the prosecutor is heavy handed or a bully, the jury might "Just say no." A judge is not likely to rebel in this way.
  • Pressure to convict. Some experts question the neutrality of judges when deciding whether a defendant is guilty. Critics (or cynics) suspect that, because they hold public office and may have to stand for re-election, judges may be tempted to please the public's perceived desire for conviction.

The Value of Legal Representation

If you are facing criminal charges and need to decide between a bench or jury trial, your best option is to be represented by counsel as early as possible in the criminal process. A local attorney who has experience in the court in which your case is being tried can identify the specific advantages or disadvantages to a bench trial or jury trial in that court, give you meaningful advice about your options, and represent you throughout your entire case.

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