5.6 Jury Trial or Bench Trial

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

5.6 JURY TRIAL OR BENCH TRIAL

5.601 In General. When the case will be heard by the circuit court, counsel must explain to the client the realities of a jury trial and inform the client that the court, the Commonwealth, and defense counsel must all concur to waive a jury. ¹⁵⁴ Without this concurrence, any one of the three can elect to have a jury. In the most serious traffic cases, the election of a jury trial may not bode well for the defendant because of the public stigma associated with such charges. Also, if the jury recommends jail time, some circuit court judges are reluctant to suspend it. On the other hand, a jury is often an excellent source for acquittal where a factual dispute exists or if the BAC is seriously flawed.

Virginia is one of only two states in the country in which a jury sentences. Counsel has heard from judges the admonition that if you live by the jury you die by the jury. A sentence that may be customary if one loses a DUI case tried before a judge cannot be counted on if tried before a jury. The most serious risk to a trial by jury in Virginia is that, if the defendant is found guilty, he or she may be sentenced to jail by the jury and the trial judge may not suspend the sentence. This particular risk normally does not exist with a bench trial on a first offense unless there was an aggravating factor such as extreme speed, an accident in which someone was hurt, or obnoxious behavior toward the officer after the stop. The risk must be weighed on a case-by-case basis. Additionally, some judges will ignore this principle and will have no problem reducing a suggested sentence in such cases. Counsel must weigh the chance of greater success with a jury against the chance that

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