Apparently, a recent study has confirmed the findings of an older study:
The researchers made three primary findings:
Judges tend to convict more than juries in cases of “middle” evidentiary strength.
Judges acquit more than juries in cases in which judges regard the evidence favoring the prosecution as weak.
Judges convict more than juries in cases in which judges regard the evidence favoring the prosecution as strong.
Here’s the conclusion:
In sum, criminal defendants are benefited by opting for a bench trial when the evidence is weak, and a jury trial otherwise.
It seems to me that the studies confirm what’s probably somewhat obvious to most lawyers who’ve tried any appreciable number of cases to verdict before judges and juries.
Juries are unpredictable. I’ve had juries convict clients when I felt the state utterly failed to meet its burden. I’ve had juries acquit clients when I started preparing for the aggravation phase the moment they left to deliberate; I never thought for one second they’d come back with a two-word verdict. In those cases where the evidence is close, juries don’t always consider the burden of proof. It’s my failing if they don’t understand the presumption of innocence, but it’s tough to know how much emphasis on that point is enough and how much is too much. That rare jury full of cynical, government-fearing patriots is tough to select even when the ones you’d want are on the panel.
Judges can be unpredictable too, though they’re usually more experienced and therefore more likely to identify an especially good or bad case when they see it. Perhaps more importantly, you know a lot more about the judge than you could about prospective jurors. You’ve seen them before. You’ve argued in front of them before. Your colleagues can tell you if they’re good or bad, and a lot of the time, you can strike them if you’re on the case early enough. When you have the option, the decision to try a case before the judge instead of a jury is an informed one. No good defense attorney is going to sit by and do nothing to avoid a bench trial in front of a judge who wouldn’t find for the defendant if the evidence against him or her is weak.
It comes down to professional judgment. Knowing as much as possible about the judge and understanding juries is part of the package when it comes to hiring a defense lawyer. The most interesting part of the study is probably the fact it suggests lawyers probably aren’t as good as we think we are at deciding whether to strike a judge and reminding the one who ultimately presides over the case about the burden of proof in cases of “middle” evidentiary strength.