Posted by Perry de Marco, Sr. on 13 November 2014

The Constitution of the United States and the State of Pennsylvania guarantee to an accused the right to a jury trial. A difficult issue arises in many cases however as to whether or not the accused should proceed with a jury trial or have the case tried by a judge without a jury. There are many facets to this issue and we will discuss the salient ones here. First, whereas the right of the defendant to be tried by jury is absolute, the right to a non-jury or waiver trial is not. Both Federal and State prosecutors can demand that a case be tried to a jury even though the defendant requests a non-jury trial. Also, in a case involving multiple defendants, if one defendant requests a jury trial then all are required to proceed by way of a jury trial regardless of their preference to be tried by a judge alone. A jury is selected from a panel of voters who are qualified to sit as jurors. Various factors can disqualify a person from sitting as a juror the most common of which is criminal conviction for example. In the selection process jurors are asked to fill out a questionnaire the purpose of which is to determine their qualification to serve as jurors. The essential determination is whether or not the prospective juror can participate as a fair and impartial juror in the case before them. The process to determine this is called voir dire. It involves questioning by both the judge and the lawyers to determine whether there exists any impediment in permitting the prospective juror to serve. In many cases this questioning is performed in a general way whereby questions are directed to a select group of jurors as a whole. In more serious cases, such as murder or sexual offense cases for example, the questioning is conducted individually for each prospective juror. In this case each prospective juror is called to the witness stand and questioned individually out of the hearing of the other prospective jurors. It is a complete and total fallacy to conclude that the jury selection process always results in a “fair and impartial”jury. My experience as a criminal lawyer in Philadelphia, is that the process of jury selection at best scratches the surface of a person’s beliefs regarding their ability to be fair. It stands to reason that five or six minutes of questioning can hardly reveal a person’s true beliefs and convictions. Additionally many prospective jurors clearly do not want to serve and are rather inventive in their excuses to avoid serving. In one of my Federal drug cases when the Judge asked a prospective juror why he claimed that he could not be fair, he told the judge in reference to my client, a very large man, resplendent in a beautiful custom tailored suit that “Any man who looked and dressed like that just had to be a drug dealer”. Needless to say he was excused from service. The truth of the matter is that judges and trial lawyers who have been doing this for a sufficient number of years have pretty much heard all the excuses. Assuming that a fair and impartial jury is selected, there are important advantages to a jury trial. First and foremost, a jury’s verdict must be unanimous. A defendant cannot be found guilty of any of the crimes for which he is charged unless each and every juror agrees that the government has proven the essential elements of the particular crime beyond a reasonable doubt. If a jury cannot reach a unanimous verdict, this constitutes a “hung jury”and eventually a mistrial is declared and in most cases a new trial ordered. So from a defendant’s standpoint, in a serious case, if even one juror can be persuaded of the defendant’s innocence, a conviction can be avoided. Also, in the event of a conviction, Appellate courts look much more closely at errors committed in a jury trial than in a waiver trial. So why would a defendant give up a jury trial and elect to be trial by a judge without a jury? The most obvious reason is that in time judges develop track records which enable the attorneys on both sides to be assured that the judge can be fair and impartial depending of course on the type of case. Simply put, both sides know that they will get a fair shake if you will, regardless of the outcome. Also, a major but unavoidable problem with jury trials is that at the end of the presentation of testimony the Judge instructs the jurors regarding the law of the case. The judge does this by reading to the jurors from a book of jury instructions. Unfortunately in most situations the jurors are hearing these laws and instructions for the first time in their lives. Many of the instructions are complex and difficult to understand. The jurors are permitted to send questions to the Judge asking that the law be explained over again. Unfortunately many times the questions and verdicts reveal that the jurors just didn’t understand the law. This problem does not exist with an experienced Judge and so for that reason in certain cases a Judge trial may be preferable. It is precisely because of the fact that defendants are presented which such complex decisions that it is so crucially important that they retain competent defense counsel to assist them in deciding whether to proceed with a Jury or Judge trial. I have been a Philadelphia criminal trial lawyer for nearly forty years. I have vast experience and I am always ready to help.