Those of us who carry may one day find ourselves charged with a crime for using or threatening lethal force in self-defense. If our case ends up going to trial, we may be faced with a decision: whether to have a traditional trial by “a jury of our peers” (as is our constitutional right) or a “bench trial:” having the case decided by a single judge.
In most movies and TV programs, jury trials predominate, mostly because writers and directors love the potential for drama. They can show the various jurors deliberating, sometimes fiercely, over whether or not they should convict the defendant. The classic 1957 movie, Twelve Angry Men, is a perfect example: the initial vote is 11 to 1 to convict, but the lone hold-out, played by Henry Fonda, gradually wins the others over, one by one, finally ending in an acquittal.
This season, actor Michael Weatherly (formerly “Tony Dinozzo” in NCIS) plays a super-smart jury consultant, Dr. Jason Bull, in a drama described by CBS as “inspired by the early career of Dr. Phil McGraw, the founder of one of the most prolific trial consulting firms of all time. Brilliant, brash and charming, Dr. Bull is the ultimate puppet master as he combines psychology, human intuition and high tech data to learn what makes jurors, attorneys, witnesses and the accused tick.”
I recently talked off-the-record with real-life jury consultants, and they agree with the show’s fundamental premise that psychologically assessing juries can help either the prosecution or (more often) the defense. However, they point out that “the fictional Dr. Bull’s batting average is totally unrealistic. Sure, we can assist in jury selection and to some degree guide trial strategy, but the outcome is never as 99% predictable as the show suggests. But, hey, that’s Hollywood.”
That being said, I still recommend the show, since it does point out the very wide range of jurors that you could find yourself facing and how their individual histories, biases and psychological issues affect their verdicts. Every jury will be different, and every case of self-defense can have aspects that are uniquely problematic, especially in terms of emotionally charged elements (think: “unarmed teen”) that can sway a jury.
Which is why your attorney might recommend a “bench trial” instead — waiving your right to a jury trial and instead having a single judge decide your case. But remember that judges, just like juries, vary dramatically in their backgrounds and biases. And, yes, there are judges who are just plain anti-gun.
As a result, whether or not going before a judge is the right strategy absolutely requires that you have a serious discussion with a competent, trial-savvy attorney. The really top-notch self-defense lawyers know the judges in their areas. These lawyers will be familiar with each judge’s views on self-defense cases, especially when they involve the use of firearms that lead to injury or death.
Such attorneys can help determine whether a jury will view your particular case sympathetically or be so full of potential “landmines” that a bench trial might be preferable, depending on the judge who will likely try the case. Bottom line, it’s always going to be a tough call. Just make sure you have a good attorney who will help you understand all of the pros and cons of both options before you decide.
