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Things to Look for When Selecting a Malicious Wounding Attorney: Part 6 Deciding On a Jury Trial or Bench Trial

The Two Options Available: Bench Trial or Jury Trial

Trial of a malicious wounding case can either be by the judge sitting alone -- known as a bench trial -- or by a jury of 12 people. The defendant has the option of choosing whether he wants his innocense or guilt determined by a circuit court judge only, or by a jury if the charge is certified to the grand jury by the general district court judge at the preliminary hearing.

Each has benefits and risks, and the defense attorney should throroughly discuss with his client before the preliminary hearing whether he wants a jury trial or a bench trial.

The Bench Trial

In a bench trial, the Commonwealth only has to convince one person of the defendant's guilt -- the circuit court judge. In close cases of guilt, a bench trial may be disadvantageous to the defendant for a couple of reasons.

One, the Commonwealth's Attorney has been before all the judges in a particular court on numerous occasions. Consequently, the Commonwealth's Attorney will have the advantage in knowing what the judge's attitude will be, whether he or she will be lenient or strict in permitting challenged evidence to be admitted, and whether in the past he or she has been more likely to convict or acquit when the evidence in the case is close.

The Jury Trial

In a jury trial the Commonwealth's Attorney must convince all 12 members of the jury that the evidence proves beyond a reasonable doubt that the defendant is guilty of the charge. This is a risky task for the Commonwealth's Attorney in a close case, and most will prefer a bench trial. Also, because the Commonwealth's Attorney's office usuaully is understaffed and overworked, a bench trial demands less work for them to do, and as previously mentioned, the Commonwealth's Attorney has a good idea ahead of time whether the case is strong enough for the particular presiding judge to convict.

Human nature being what it is, most people believe that the police make an arrest because the person is guilty of the charge. But that is not always the case, and as case after case has shown, many innocent people are wrongfully convicted because their lawyer dropped the ball.

But there are usually one or two or three members of each jury I've argued cases before who take very seriously their oath to evaluate the evidence presented with an open mind, and not permit any pre-conceived bias he or she may have in favor of the police being correct all the time, sympathy for the complaining witness or his or her family affect their decision.

Similarly, among the jury are likely to be a few people who will not be initially prejudiced against the defendnat due to his social background, his appearance, his ethnicity, his lack of education, or his ability to express himself with clarity if he testifies. In my experience, in a close case where the issue is whether the defendant possessed the malicious intent necessary to be convicted, or whether he was defending hiimself against attack, or coming to the aid of another uunder attack, a jury trial offers the best chance for obtaining a not guilty verdict, or of a conviction of a less serious offense such as assault and battery.

Other Factors to Consider

Among the most important factors a defendant should consider in deciding whether to opt for a bench trial or a jury trial are his prior criminal history, the strength of the Commonwealth's case against him, the weaknessses in his defense to the case, and the degree to which the complaining witness -- the victim -- was injured.

If found guilty of malicious wounding by a jury, the Commonwealth's Attorney will be allowed to present evidence of the defendant's prior criminal history to aid them in reaching a punishment. The jury will then be instructed by the court to retire to the jury room to decide the defendant's punishment. Conviction of malicious wounding is punishable by a maximum term of imprisonment of 20 years. Juries tend to sentence defendants to longer prison terms than judges, especially when the defendant has a prior criminal record. While the judge does not have to impose the jury's sentence as a matter of law, unless the judge finds the jury's verdict exceeds the maximum punishment allowed by law, or when he or she believes the sentence is too harsh under the facts of the case, most jury verdicts are ratified by the trial judge, and seldom overturned on appeal.

On the other hand, the Virginia Sentencing Commission, a state agency, has produced a Sentencing Guidelines manual that judges are encouraged -- but not required -- to follow in sentencing persons convicted of certain crimes, including, but not limited to, malicious wounding. One of the very first things a competent attorney should do when taking a malicious wounding case -- or any other case in which the Sentencing Guidelines apply -- is to advise the client what potential sentence the Sentencing Guidelines recommend he or she is likely to face if convicted. While Virginia judges are not required to adhere to the Sentencing Guidelines recommendation, seldom do they vary from the Guideline recommendations.

Not all attorneys are by lack of experience capable of adequately analyzing malicious wounding case. However, the decision to elect a jury trial rather than a bench trial is ALWAYS that of the client.

Mr. Stelly regularly appears in the courts of the City of Richmond, Henrico County, Chesterfield County, Goochland County, and Hanover County.

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