There is the famous right to be tried by a jury of your peers, but do you also have the right to a bench trial, if you prefer?

2 Answers 2


In Ring v. Arizona, SCOTUS placed a limit on bench trials, holding that

Walton is overruled to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. Because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” the Sixth Amendment requires that they be found by a jury.

The court's context was a determination by a judge regarding imposition of the death penalty. Defendant did not waive a right, rather, the law did not recognize the right and was written so that upon a finding of guilt, the judge makes a determination of fact leading to a death sentence. This case therefore does not clearly declare that a bench trial is not possible in a capital case. Hurst v. Florida more recently overturned Florida's sentencing law in capital cases, explicitly holding that "Any aggravating circumstances must be found and weighed by a jury alone". Following up on that ruling, the Delaware Supreme Court answered further legal questions on the topic in Rauf v. State of Delaware (regarding unanimity, reasonable doubt, determination that "aggravating circumstances found to exist outweigh the mitigating circumstances"), which would be binding in Delaware and persuasive in other states.

However, FRCRMP 23(a) states that

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.

which means that there is no absolute right to a bench trial. An analogous rule exists in Idaho (prosecutor consent only).

  • Shorter: "do you also have the right to a bench trial, if you prefer?" No.
    – ohwilleke
    Commented Sep 19, 2023 at 17:08


Summary offenses default to bench trials. Indictable offenses default to jury trials.

In either case, the court has discretion to go the other way, on the request of the parties or on its own initiative. This almost never happens for summary offenses, and only havens in exceptional circumstances for indictable offenses; either way the defendant doesn’t have a right to change.

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