Ask Amanda: Bench Trial vs Jury Trial?

Q: My trial is coming up for the criminal charges against my abuser/husband. I found out today it's a bench trial. Is that typically better or worse than a jury trial? And is it normal to feel more at risk for my safety during this time? – Jennifer J.

A: First off, let’s address your safety concerns. Of course it’s normal to feel anxiety after surviving any type of trauma. But remember that you’re just that: a survivor. You've got this, Jennifer, and hopefully, a judge will see that your abuser should be prevented from ever harming you again.

You may feel more anxious if your abuser has been released until the trial, which is dependent on the seriousness of the allegations says the Hon. Steven Aycock with the National Council of Juvenile and Family Court Judges. For the past seven years, Aycock has worked with judges across the country on domestic violence issues. 

“Most domestic violence batteries are charged as misdemeanors. Most [abusers] will be either released without bail—but usually with conditions like no contact, no drug or alcohol use, and no criminal activity—or with minimum bail, on average, $1,000 to $5,000. Most are released either because of no bail or because they made bail.

“A serious crime will usually be charged as a felony. These defendants are more likely to stay in jail but it depends upon their wealth. For all crimes, misdemeanors and felonies, the criminal history will also make a difference, as will whether [the abuser] has failed to appear for court in the past.”

If your abuser is not incarcerated, please talk to a domestic violence advocate about safety planning. You can find an advocate near you by entering your ZIP code at DomesticShelters.org. Your safety plan may include relocating, even temporarily, to a place your abuser isn’t familiar with. This could help you feel more at ease while the case is ongoing. There are other steps in a safety plan that can also help you feel more secure. Most importantly, if you feel threatened by your abuser at any time, whether he or she shows up where you are or contacts you, call police and let the prosecutor know. This information could be useful in the trial.

As far as the differences go between a bench trial and a jury trial, Aycock says the main distinguisher of a bench trial is that it’s a judge, not a jury of six or 12, who makes the finding on whether or not the case has been proven beyond a reasonable doubt.

Is it a better option for you? It depends on the judge, says Aycock. “You only have to convince one person, the judge, that your abuser is guilty. So that’s an advantage.” But if you suspect the judge is biased against domestic violence cases, says Aycock, or if the judge is a former prosecutor, who may be quicker to find a reasonable doubt, you could be up against a bigger challenge.

“It depends on the state, but most states allow you to file an affidavit of prejudice, or rather, your attorney would have to file it. And in some states, you have an automatic right to change a judge once. But you have to do it early, before the judge has made any sort of discretionary ruling. And you have to show, somehow, that the judge is biased, either against you or this subject.”

If you don’t have an attorney, talk to the prosecutor’s office. Typically, there’s a victim coordinator or domestic violence coordinator, says Aycock, and inquire if they know anything about the judge you’ll be going in front of.

But know that if judges are switched, you don’t get to pick the new judge you’re assigned. “It can be a gamble,” says Aycock.

Good luck, survivor Jennifer.

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Ask Amanda is meant to offer helpful resources and information about domestic violence. If in crisis, please reach out to your nearest domestic violence shelter for the guidance of a trained advocate.