The Constitutional Right to Bench Trial

Abstract

Sometimes juries are prejudiced against the defendant. Juries may be predisposed to find a defendant guilty because of the nature of the charges. They may be predisposed to find a defendant guilty because of the reputation and demeanor of the defendant. They may be biased against a defendant for bigoted reasons, either consciously or not. Juries may also lack the ability to understand and apply the law in some cases. And indeed such kinds of juror prejudice may pervade the jury pool.

The resulting pervasive juror prejudice imposes constitutional harms on the defendant. Among other things, pervasive juror prejudice contravenes a defendant’s presumption of innocence and a defendant’s right to fair trial procedures. The way our current law handles such pervasive juror prejudice is inadequate: Courts are unlikely to delay trial when appropriate, instead relying on voir dire and jury selection. But this is no solution, because voir dire and jury selection are unable to cure pervasive juror prejudice.

In this Article, I proffer the first comprehensive, multimodal argument that defendants have a constitutional right to bench trial. First, I explain that as a theoretical matter, providing the defendant with the unilateral option of a bench trial with the requirement of a reasoned opinion is the only effective way to combat pervasive juror prejudice. Second, I show that the empirical and historical evidence confirm that the problem of pervasive prejudice is substantial: it arises frequently, including in the most high-profile cases; prosecutors do refuse consent to bench trial in cases where prejudice may arise; and the purported solutions of voir dire and jury selection are ineffectual. Finally, I show that, as a doctrinal matter, the interpretation of the Sixth Amendment—including with respect to the right to waive counsel, the right to a unanimous jury trial verdict, and the Court’s response to racism in jury selection and jury deliberations—shows that the defendant has the unilateral right to bench trial.

Keywords: criminal procedure, bench trial, jury trial, criminal law, criminal defense

JEL Classification: K10, K14, K40, K41