Should I Waive My Jury Trial to a Bench Trial or Request a Jury on my Misdemeanor?

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As most everyone knows, if you are charged with a felony in Indiana, you are guaranteed a jury trial. In fact, it is such a fundamental right, it is established as a matter of course when your felony case is charged at your initial hearing — you will be given a date for your jury at that hearing, whether you want one or not. It is assumed the case will be going to jury trial unless the parties work out a resolution by way of a plea agreement, the case gets dismissed, or the parties agree to waive the case to a bench trial instead of a jury.

If you are charged with a misdemeanor, you are guaranteed a bench trial (or trial by judge), but the constitution still affords you the opportunity to request a jury trial so long as you do so 10 days prior to the first bench trial setting. As for Level 5 felonies and higher, juries are comprised of 12 jurors with one to three alternates (county/judge depending). As for Level 6 felonies and below, juries are made up of 6 jurors and 1-2 alternates, again, county and judge determinate for alternates.

With all that said, is there ever a time that a bench trial makes more sense than a jury? The answer is yes, and this blog will discuss the topic focusing on the main reasons for agreeing to waive.

As a caveat, before you or anyone agrees to waive a case to bench/judge and allow the judge to be the single arbiter of facts and law, you should have a very candid conversation with your attorney. Once the jury trial right is waived, barring massive legal maneuvering, you will not be able to get your jury trial right back. The caselaw has recently shown that in order to waive a jury the state and the defense have to agree. If either does not, a waiver cannot occur.

So when should you consider waiving?


In cases involving highly charged, emotional facts, sometimes it may make sense to let a judge decide the outcome. Judges are often seasoned to set emotions aside and rule on the facts and the law alone. Juries have a very hard time doing this. If emotions are high, juries tend to want to hold someone accountable and have a hard time setting emotions aside. This is equally the case with news cases. Jurors may feel added weight if it is a high-profile matter, while judges (in theory) should be able to set that aside.


Much like emotionally charged cases, sex crime cases and minor victim related cases can be ripe for waiving to bench. Judges set the tough allegations aside and make what is supposed to be a non-biased decision based on whether the facts meet the elements of the offense. Juries, despite the constitutional and legal requirements to the contrary, often go into sex crime cases and child related victim cases believing the defendant must be guilty. Judges do not (at least should not). Because of the danger of preconceived bias, waiving to a judge may be best.


Many times a waiver makes sense when a prosecutor feels they cannot dismiss the case for whatever reason, but recognizes they are more than likely going to lose. A waiver on a murder for example, can be a way to signal to a judge that the prosecutor does not think a full-blown jury makes sense. Because a jury isn’t present, the parties can simply argue the points without needing to put on a full show charged with emotional arguments.


Sometimes the only issue the parties are arguing over is legal/statutory interpretation. The parties may completely agree as to the evidence to be presented but ultimately believe a judge needs to determine the law and how the facts fit within it. In these limited circumstances keeping the case simple, stipulating to the evidence, and spending the majority of the time arguing over law is ripe for a bench trial. That saves everyone (judge, prosecutor, staff, witnesses, jurors, etc.) time and limits the focus to that which is most important.


There are rare circumstances where the defense and the state recognize that the defense has no avenue to win but the defense wants the judge to hear the entire back story as to how or why it may have happened. While not a legitimate justification for the crime or enough for an affirmative defense, there may be enough there to mitigate responsibility without using the full court resources and jurors to make the decision. Often times if judges see that the parties are trying to save resources, it can help in mitigation of the sentence. Judges can often see cases where the defendant cannot fully accept responsibility, want their day in court, recognize the strong potential of a loss at trial, and want to mitigate the damage that follows a full-blown jury loss.

When all is said and done, every case is different. Every judge is different. Every county is different. Therefore, before you ever make a decision as large as a waiver of jury trial is, you should speak at great length with your lawyer. It can completely change the trajectory of your case, for good or for bad. Placing the decision-making in the hands of one person, the judge, can be a scary thing — or, it can be the right thing. That’s why hiring an experienced lawyer is so critical.

Should you or a loved one be facing a criminal charge in Indiana, give the experienced Indianapolis Criminal Defense Attorneys at Banks & Brower a call today at 317.870.0019. Or email us at We are available 24/7/365.