You are entitled to a trial when you are accused of a crime. At trial a neutral third party will take the role as fact finder and will hear the evidence each side presents and will then determine if the prosecutor has met their burden of proof as required by law. If this neutral third party determines that the prosecutor has met their burden, you will be found guilty. If this neutral third party determines that the prosecutor has not met their burden, you will be found not guilty. An individual is not compelled to testify against themselves during trial, but they are entitled to be an active participant in the process. There are two types of trial with the difference between the two being who is the neutral third party. This third party can either be a judge or a jury and usually the accused can decide which one they want to hear their case. This page will explain both types of trials.


In a bench trial, the neutral third-party fact finder is a judge. The judge’s duty is to hear the case and if the individual is found guilty of the crime, the judge will determine their punishment. When the accused consents to a bench trial, the judge will listen to the facts and then attempt to answer two questions: 1) did the prosecutor meet their burden of proof to find the person guilty? And 2) If the answer to the previous question is yes, what is the proper punishment for them?

There are many reasons to choose a bench trial and some of those reasons can be tactical. Listed below are five reasons that a bench trial happens.

  1. The facts being presented may involve an advanced legal issue that the accused thinks will be better understood by a judge.

  2. If in municipal court, a bench trial is the only available type of trial because these courts are not allowed to preside over a jury trial. You can still be entitled to a jury trial on appeal but not in the municipal court.

  3. A bench trial is slightly less formal than a jury trial and doesn’t take as long.

  4. A bench trial can be cost effective for the defendant as it requires less time spent on behalf of a lawyer (because they will not spend time choosing a jury).

  5. The facts being presented could be humiliating, racially charged, sexually explicit or repulsive, however a law may have not been technically broken and the accused may be worried that because of the case’s nature a jury may yield to the specific nastiness of the case and convict them when no law was broken.

You should discuss the advantages and disadvantages of choosing a bench trial with your attorney. Below are a few things to think about.

  1. Ask if your attorney has had a trial in front of the presiding judge before. An experienced criminal defense attorney will be able to give you valuable insight in making your decision.

  2. Ask if the judge has any tendencies regarding cases similar to yours. Judges are people jus like you and me, they could have particular types of cases that they are harder on than others. For instance, if your attorney says, “this judge gives a lot of weight to when an individual refused a breath test in a DUI case,” and your case is a DUI refusal case, you may want to consider asking for a jury trial.

  3. Ask how many cases your attorney has tried in front of a jury in the jurisdiction you are in. If your attorney has, they could be able to give you insight into how juries tend to rule cases similar to yours. If the particular jury pool tends to doubt the police or questions the prosecutor’s office, then you may want to considering choosing a jury trial over a bench trial.

  4. Ask your attorney if they have had cases with the prosecutor. Each attorney has their strengths and their witnesses. Some attorneys have a difficult time talking with juries. Just like in real life, some people are trusted or liked more than others. Juries notice these things and it is a good idea to have experience with the prosecuting attorney when choosing the type of trial you want.

Individuals are always entitled to a complete evidentiary bench trial when they are accused of a crime. Individuals can always hire an attorney to represent them at trial and they cannot be compelled to testify against themselves. However, a bench trial could not be the idea way to protect yourself, an individual can almost always choose a jury trial instead of a bench trial.


In the majority of cases an individual has the right to a jury trial if they so choose and if they preserve that right with the proper paperwork being filed. In Kansas, on any felony an any other criminal case which carries a punishment of more than 6 months in jail, you are entitled to a jury trial. At any time during the case you can request a jury trial, unless you have previously waived that right. If a crime carries a punishment of less than 6 months in jail (“a petty crime”) a jury trial must be requested in writing. If not requested in writing, you could not be allowed to have one. Petty crime cases require you to follow an additional step in order to be granted a jury trial, seek K.S.A. 22-3404;

“The trial of misdemeanor cases shall be to the court unless a jury trial is requested in writing by the defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant’s counsel. The time requirement provided in this subsection regarding when a jury trial shall be requested may be waived in the discretion of the court upon a finding that imposing such time requirement would cause undue hardship or prejudice to the defendant.”

The law was clarified in State v. Woolverton. In this case, the court held that, “A misdemeanor domestic-battery offense—punishable by no more than 6 months in jail, a fine of up to $500, participation in and payment for a domestic-violence-offender assessment, and compliance with the assessment’s recommendations—is a petty offense for which there is no constitutional right to a jury trial.” State v. Woolverton, 52 Kan. App. 2d 700, 371 P.3d 941, 942 (2016). Therefore, as long as you do what is required of you, then you will be able to have a jury trial in almost all cases.

There are advantages and disadvantages to a jury trial as well. Below are a few of those reasons.

  1. The accused doesn’t want their fate in the hands of one individual. A jury trial allows for the experiences and brains of multiple people before a verdict is rendered. In a bench trial, it is solely the judge who decides the case.

  2. An individual could feel their case is a close call as to whether they broke a law however, the case has particular circumstances that they feel a jury would better understand and possibly find them not guilty of a technical violation of the law.

  3. You may feel that the judge who will hear your case wouldn’t give them a fair trial or they could have some preconceived perceptions of the case. One example would be if the judge knows your criminal history as you’ve been in front of them in the past and you don’t think they can put that prior knowledge behind them when ruling on the current case.

  4. You feel that a jury of your peers would identify with you more than a judge and therefore they could be more sympathetic to your situation.

Depending on an individual’s specific case there could be other reasons they choose to exercise their right to a jury trial. Please note that there are possible disadvantages to having a jury trial, of which a few are listed below.

  1. Jury trials take more time and usually cost more money. Most attorneys charge by the hour and your attorney will need additional time to research the potential jurors as well as pick that jury in court.

  2. If the case is really complex or your defense is an advanced legal argument, a jury could not understand it as well as a judge could.

  3. Juries are hard to predict. You are banking on the knowledge and experiences of people who have zero legal training. This could lead to a misunderstanding of the burden of proof or instructions.

  4. The jury could have to overcome an instinctive bias. There are people that think that just because someone is behind the defense table that there is a reason they are there. They could ignore the presumption of innocence.

While determining how to proceed with your case, you should confer with an experienced criminal defense attorney. An experienced criminal defense attorney can give you valuable insight into whether a bench trial or a jury trial would best suit the facts and legal arguments of your case.