In the Federal criminal case against Donald Trump in the Mar-a-Lago classified documents case, does former president Trump have the ability to waive a jury trial and request a bench trial?

Given Aileen Cannon's history in cases involving the defendant, and potential bias towards the person who appointed her would this be a good legal strategy on his part?

1 Answer 1


While the right to a jury trial is waiveable, in order to have a bench trial in a federal district court, the court and prosecutor generally must agree.

before any waiver can become effective, the consent of government counsel and the sanction of the court must be had

(Patton v. United States, 281 U.S. 276, 312 (1930))

This is codified in Rule 23(a) of the Federal Rules of Criminal Procedure.

However, just because the waiver can be (and generally is) conditioned on governmental consent, some courts have nonetheless allowed the defendant's request for a bench trial despite the lack of consent from the government. See e.g. United States v. Panteleakis, 422 F. Supp. 247 (D.R.I. 1976) (a trial against multiple defendants that would require considering "approximately 1,000 exhibits," "over a three month period," with some evidence admissible against some defendants while inadmissible against others; and the government did not try to "rebut the inference that substantial prejudice [in a trial by jury] is practically impossible to avoid under these circumstances").

This possibility appears to have been left open by the Supreme Court in Singer v. United States, 380 U.S. 24 (1964):

We need not determine in this case whether there might be some circumstances where a defendant's reasons for wanting to be tried by a judge alone are so compelling that the Government's insistence on trial by jury would result in the denial to a defendant of an impartial trial.

  • 5
    This is generally the correct answer under Rule 23, but note that there are outlier cases where the court has proceeded to a bench trial over the government's objection. See, e.g., United States v. Panteleakis, 422 F. Supp. 247, 250 (D.R.I. 1976) (“The Court finds the government's refusal to grant consent unreasonable and arbitrary, and feels compelled to grant the defendants' motion.”)
    – bdb484
    Commented Jun 21, 2023 at 21:31

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