This is a fundamental question. We have a right to a trial by a jury of our peers. The sixth amendment to our Constituion guarantees this right.
That being said, how does an accused choose Judge or Jury? It is subjective. Who are your peers? Is the Judge ameanable to your arguments?
Remeber the OJ Simpson trial. OJ demanded a jury trial. A murder was commited in Brentwood. OJ Simpson was arrested for the murder of Nichole Brown Simpson and Ronald Goldman.
The case was moved from the posh area of Santa Monica to Downtown Los Angeles. Most people in Santa Monica are Caucasian. Downtown Los Angelas is predominately Hispanic and Black.
The jury ultimately aquitted OJ Simpson. We will never know if the jury's race played a roll. We will never know if Judge Lance Ito would have rendered a different decision.
If a person committed a crime, go with the jury. They are more sympathetic than a Judge.
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In some cases a bench trial can be more fair, but I do think that in general our jury trial system works amazingly well. After all, that is why we have voir dire, the jury selection process. Either lawyer can get a juror dismissed during the proceedings for misconduct too.
I wouldn't put too much stock in the idea that juries are softer than judges or that it is easy to figure out what kind of people will take one side or the other when they're on a jury. I remember once when I was on a jury for the first time. I was 26 and had long hair. The defense used all its challenges to get to me because they thought I'd be symapthetic (it was a vandalism/grafitti case). But as it turned out no one on the jury thought the prosecution had any kind of a case at all and we acquitted very quickly. My point is that you can't stereotype juries. The rest of the jury was middle aged (or so it seemed to me at that age) and white and yet no one argued for convicting the young, "person of color" person with the tongue piercing (much more radical in those days than now).
I would like to think that the O. J. Simpson trial was not a typical example of the jury system at work. My own sense is that juries generally take their responsibilities very seriously and try to do their best to render a just verdict. That trial was so bizarre in so many ways (including the judge) that I'd like to think that it is an exception to the general rule.
The United States constitution guarantees every person trial by jury if the amount in controversy exceeds twenty dollars. This right applies to any criminal issue, down to a simple parking ticket. One need not demand a jury trial, but if one wishes a bench trial, he must inform the court that he wishes to waive his right to a jury trial.
Ones peers are ones social equals. It is commonly accepted that peers are the residents of the community in which one resides. There is the possibility of variance dependent upon the composition of the jury; however this is an imperfection that apparently has no solution. Both prosecutor and defendant are entitled to strike from the jury a limited number of persons without explanation (provided the juror is not dismissed because of his/her race) and an unlimited number if he can state a legitimate cause to do so.
The O.J. Simpson trial continues to be controversial; however it is both unfair and unwise to blame this on the jury system. The trial was moved to prevent unfair publicity, and both prosecutor and defense had some role in who was seated on the jury; therefore the effect of moving the trial was most likely minimal. As to whether a bench trial would have produced different results, one can only guess. However, having spent twenty years practicing law, I can tell you that any person who chooses a bench trial over a jury trial should do so with an abundance of caution.
In my state, Ohio, our Criminal Rules call for 12 member Juries, for felonies and misdmeanors, although the federal constitution does not mandate 12.
To be triable by Jury in Ohio, it must be a Misdemeanor of the 4th degree and up. Some crimes are Minor misdmeanors, as are most traffic offenses under state law, and are not triable by jury. If no jail time is pemitted by law, under the federal constitution, no jury is mandated.
So in my state, some offenses are NOT triable by jury.
Those that are, the rules permit a waiver, mostly, but unless all 12 as it must be unanimous here, agree to convict, you end up with a hung jury. The federal constitution's Due Process Clause will not permit more than 3 retrials if the next are hung juries.
Jury is the way to go, absent legal factors present only in that specific case that would make a Bench trial a more strategic move.
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