After twenty-five years of defending and trying criminal cases to juries, I recently tried something very different: a contested non-jury (bench) trial with the court making specific findings of law and facts as part of its verdict. Most criminal defense attorneys who have experience with non-jury trials tend to waive specific findings by the court - and depending on the circumstances, that may be appropriate.
This article discusses the two types of non-jury trials, when they may be appropriate, consideration of the importance of the right to a jury trial to our history and democracy, and practice pointers from lessons learned, from a federal criminal defense perspective.
The government alleged eleven counts in relation to my client’s university admissions assistance business that targeted foreign students: one count of conspiracy to commit immigration fraud, nine counts of immigration fraud based on nine specific students and one count of aggravated identity theft in relation to one student. My client insisted on a trial. Our defense was a bit nuanced – that while the government had evidence that the defendant had falsified school records to help his clients get the university acceptance offers, he had not done so for the purpose of helping his clients obtain immigration form I-20s to be admitted into the United States. Indeed, as a witness later testified, the students often wanted the university offers to boast to their wealthy friends – which defense the government did not anticipate. Still, the government believed that obtaining a form I-20 was part-in-parcel of seeking admission offers from the universities.
My client and I agreed that his defense would not resonate with a jury as a story of innocence, especially given the large sums of money the government claimed he had earned from the scheme. As to which type of non-jury trial we believed would be appropriate, a general verdict did not appear appropriate because the court would then not make specific findings and thus, more likely result in a guilty verdict. Instead, we wanted to ensure that the court pay close attention to articulate, in detail, its analysis as to whether the government had proved beyond a reasonable doubt each of the eleven counts it had charged and how our defense did or did not apply. Therefore, we decided on a contested non-jury trial with the court making specific findings of fact and law.
I won't bury the lede further. After the bench trial concluded, the court found my client guilty of only one count of immigration fraud related to one student and one count of aggravated identity theft related to that same student and acquitted him of the remaining 9 counts including the conspiracy count that alleged numerous students and immigration documents. United States v. Yi Chen, 2:21-cr-00075-MCS-2 (Cent. Dist. Calif. 2022). At sentencing, the court sentenced my client based on the aggravated identity theft (2 years consecutive) to the immigration fraud related to one student – rejecting the government’s argument that the fraud involved over 250 students and their immigration documents.
Ultimately, the court sentenced him to 4 years in prison rather than the over 7 years in prison the government had sought (and less than the 6 years in prison the government had offered pretrial). A pretty decent result after a trial in which the court prepared 56 pages of specific findings and the defendant preserved all pretrial motions, trial, sufficiency and sentencing issues for appeal. Not long after the sentencing, the government conceded on appeal that the aggravated identity theft conviction and sentence should be vacated based on Dubin v. United States, 599 U.S. (2023), leaving the client to serve only the 2 years on the one substantive immigration fraud count.
Turning to relevant federal rule on this subject, Federal Criminal Procedure 23 refers to bench trials as a “nonjury” trial. There are two types of non-jury (bench) trials: one in which counsel waive the court making specific findings (e.g., the court only announces a general verdict of guilty or not guilty) and the other in which counsel request the court to make specific findings of law and fact as part of its verdict. Often counsel and the courts use the phrase “special findings” but Rule 23 uses the term “specific” findings. To avoid confusion, “specific findings” should be used in practice.
(a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless:
(1) the defendant waives a jury trial in writing;
(2) the government consents; and
(3) the court approves.
…
(c) Nonjury Trial. In a case tried without a jury, the court must find the defendant guilty or not guilty. If a party requests before the finding of guilty or not guilty, the court must state its specific findings of fact in open court or in a written decision or opinion.
Emphases added.
In a non-jury trial with the court requested to make specific findings, the court must detail the factual and legal basis for its verdict. Findings of fact are essential to proper appellate review on a conviction resulting from a nonjury trial. United States v. Livingston, 459 F.2d 797 (3rd Cir. 1972).
There is no standard national form to waive a jury trial and request that the court make specific findings of fact and law. Counsel will need to draft a pleading to that effect and make the request clear. The one local form on the subject of a jury waiver that I am aware of assumes and includes a waiver of specific findings. See https://www.cacd.uscourts.gov/forms/waiver- trial-jury-and-waiver-special-findings-fact (notice that the Central District of California’s form uses the phrase “special findings” instead of “specific findings”). I altered the local form to request specific findings in my case, which the reader is free to review and consider in drafting a particularized pleading. See www.dropbox.com/home/Bench%20Trials/Materials%20-%20samples?preview=4+Waiver+of+Jury+Trial+with+Request+for+Special+Findings.pdf
Uncontested Non-jury Trials with a Waiver of Specific Findings
A bench trial may be appropriate when the defendant wants to preserve the ability to appeal the denial of a motion to suppress or a motion to dismiss but would still like to resolve the case and obtain an acceptance of responsibility downward adjustment - however, the government does not agree to an appropriately tailored conditional guilty plea. See Fed.R.Crim.P. 11 (a)(2) (conditional guilty pleas). A defendant must go through a trial (jury or bench trial) to preserve most pretrial rulings. See e.g., United States v. MacDonald, 435 U.S. 850 (1978) (defendant may not interlocutory appeal denial of his motion to dismiss based upon Sixth Amendment speedy trial grounds); DiBella v. United States, 369 U.S. 121 (1962) (defendant may not interlocutory appeal denial of pretrial motion to suppress evidence); cf. Abney v. United States, 431 U.S. 651 (1977) (interlocutory appeal of denial of motion to dismiss on double jeopardy grounds permissible).
When trying to negotiate a plea agreement, whether conditional or not, the following problems may arise that may lead counsel to conclude that a non-jury trial is appropriate:
a) the government’s proposed wording for the plea agreement’s factual basis includes facts beyond the elements that would increase the client’s sentence;
b) the government’s proposed description of what issues are preserved for appeal in the conditional guilty plea is limited;
c) defense counsel and the government cannot come to an agreement as to whether various sentencing increases should be applied; or
d) defense counsel and the government cannot agree to the terms of the factual basis for an open plea but the defense still seeks to preserve an acceptable of responsibility downward adjustment and the ability to contest and appeal sentencing issues.
In an uncontested bench trial, the defense counsel most likely would waive specific findings because, first, counsel may stipulate to facts that establish the client’s guilt (sometimes referred to as a “stipulated facts trial”). Second, counsel would want to save court time and resources because counsel’s goal is to preserve the defendant’s ability to appeal the pretrial rulings, obtain an acceptance of responsibility downward adjustment and sentencing consideration.
Each case is different and an open plea or uncontested nonjury trial may not be a reasonable choice in cases in which the defendant has a potential high sentencing exposure. In such cases a written plea agreement to limit the government’s sentencing recommendation would likely be more appropriate.
In contrast to an uncontested non-jury trial, a contested non-jury trial may be appropriate when counsel has a factual or partially legal trial issues that counsel are confident a jury will not see counsel’s way. In a contested nonjury trial with a request for specific findings, counsel will be putting the decision of counsel’s case in the hands of a single trier of fact.
Therefore, the decision to waive a jury trial is a very serious one that should be weighed carefully.
The Constitution of the United States, Article III, Sec. 2, Par. 3: mandates “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury….” Further, Amendment VI to the United States Constitution provides that: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury….”
Even before the Constitutional Convention of 1787, the Founders of our country risked their lives to declare to the world and King George the significance of a jury trial in their Declaration of Independence from Great Britain:
The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
…He has made Judges dependent on his Will alone, for the tenure of their offices, and
the amount and payment of their salaries.
…For depriving us in many cases, of the benefits of Trial by Jury
…For transporting us beyond Seas to be tried for pretended offences
Emphasis added.
Given our democracy’s history, every consideration should be given to see if the client’s goals could be achieved without waiving the hard fought right to a jury trial.
In addition, waiving a jury trial results in waiving significant appeal issues such as:
Practice Pointer #1: If the client is going forward with a contested nonjury trial, counsel would likely want the court to make specific findings – not simply render a general verdict of guilty or not guilty.
But be aware: a contested non-jury trial is more work than a jury trial. It is akin to a trial and appeal in one. After the trial testimony is completed, the parties and court will likely need the transcripts to prepare extensive briefings to submit their proposed findings of law and fact to the court and for the court to then render its detailed verdict.
Practice Pointer #2: Ask that the court to allow defense’s proposed closing argument/proposed findings of facts and law be due at least one week after the government files its proposed findings.
Typically, judges in civil cases order both sides to file their proposed findings on the same date. Argue that the government should file their proposed findings first as they have the burden of proof and the defense second because of the presumption of innocence. The government will likely request a reply.
Practice Pointer #3: Consider not agreeing to the Government’s request to file its proposed findings of facts and law in excess of the local rule’s pages limit for memoranda. In my case, the government filed 110 pages of proposed findings of facts and law. I suggest asking the government how many pages they are considering filing to see if counsel can come to an agreement to much less. The judge does not want to read an excessive amount of pages anyway – especially given what should be a short, nonjury trial. Let the government make its application for excess pages to the court.
Practice Pointer #4: Talk through the consideration of a jury trial waiver with a colleague(s). Why not have a jury trial and raise the same issues to a jury and then the judge later by way of a written Rule 29 motion and other post-trial motions?
Practice Pointer #5: Research the judge assigned to the case.
Judges – especially those with significant civil experience – will be more familiar than most criminal defense lawyers with bench trials and what is expected from them. Jury waivers and arbitration clauses are commonplace in commercial and employment civil cases.
Consider that judges are more predictable than juries. As well, judges tend to be less susceptible to being swayed by inflammatory facts than a jury.
Also consider this relevant observation about non-jury trials and the January 6 insurrection cases. By January 2023, there were 19 jury trials and 16 bench trials. “Comparing jury and bench trial outcomes for non-complex, non-conspiracy cases…D.C. juries have convicted 97.3 percent of the time while judges have convicted 88 percent of the time.” https://www.lawfareblog.com/are-jan-6-defendants-getting-fair-shake-dc-juries-comparing- jury-and-bench-trial-outcomes
Practice Pointer #6: Be prepared for a compromised verdict, meaning one in which the judge finds the defendant guilty of at least one count. As another author on bench trials wisely pointed out:
“While every judge, just like every juror, is different, the smart play is to assume a seasoned judge will award a compromised judgment.”
https://www.advocatemagazine.com/article/2020-november/the-risks-and-rewards-of-bench- trials
In practice, this may be a very intelligent consideration if counsel feels that the assigned judge is sympathetic and may not be willing to find guilt on a count that carries a hefty mandatory minimum sentence, as opposed to a jury who will not know of the mandatory minimum sentence.
Practice Pointer #7: Consider timing the election of a non-jury trial with a request for specific findings until after the court’s rules on in-limine motions and after counsel have met and conferred on jury instructions.
The judge should be happy with the election – the court would not have ordered the jury panel yet.
Once a non-jury trial election is made, the court will order the joint jury instructions stricken, but that’s fine. Counsel would have had the government’s agreement as to several important points of law in writing that counsel may point out when counsel are submitting the proposed findings of law and facts to the court. For example, in my case, the government agreed to a definition of “willfully” that I believed benefitted my defense theory.
Having the court decide in-limine motions before a jury trial forces the court to look at the disputed evidence with greater scrutiny as the gatekeeper. By waiting until after the in- limine motions are heard to consider electing a non-jury trial, counsel may get the benefit of excluding some evidence that otherwise the court would have let in during a bench trial.
Practice Pointer #8: During a non-jury trial, the rules of evidence may be a bit more relaxed. Counsel may have more opportunities for speaking objections. The judge will be relaxed – there is no jury to protect from counsels’ arguments. The judge will likely appreciate understanding where counsel is going with objections and the defense theory.
Practice Pointer #9: Counsel’s sentencing arguments may improve with a nonjury trial with specific findings. A split verdict or an acquittal on some counts may be more likely with a nonjury trial. But with a split verdict in a nonjury trial, the judge may be less inclined to increase the client’s sentence on the same conduct that the judge acquitted – as happened in my case.
