Fact-Finder Choice in Felony Courts

Lauren M. Ouziel - Temple University Beasley School of Law
Vol. 57
December 2023
Page 1191

Scholarship in criminal adjudication is preoccupied with plea-bargaining and jury trials, but has largely ignored bench trials. Yet bench trials occur, and not just in misdemeanor cases. In some jurisdictions, they are a mainstay of felony adjudication. This Article offers the first systematic collection and reporting of bench trial prevalence in felony cases across the nation’s largest jurisdictions, and the first qualitative study of the factors influencing jury trial waiver. It reveals bench trial prevalence to be highly variable across jurisdictions, including those within the same state. Qualitative study of five jurisdictions with varying bench trial prevalence shows what underlies that variability: ingrained institutional structures of fact-finder choice produced through the repeated interactions and interdependencies of the courthouse’s community of professionals (judges, prosecutors, and defense attorneys). Though the jury trial right rests, in theory, with the defendant, these institutional structures shape the degree of defense agency in exercising it. This study illuminates the jury trial right’s meaning on the ground, reveals the influential and under-noticed role of trial judges in a pivotal defense decision, and identifies questions for future research. More broadly, it offers a new vantage point for perennial inquiries in criminal law and procedure: what confers power in the criminal process, and how is power distributed?

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