Should you demand a Jury Trial For A Criminal Case in Virginia?

Through the legal doctrine of "incorporation", the Bill of Rights of the U.S. Constitution has been applied to the states. By this doctrine, the states judiciaries are required to respect the Rights guaranteed to us by the Constitution. One of these Rights, the Sixth Amendment, is the right to a jury trial for all criminal offenses where the defendant is facing a sentence exceeding six months in jail.

According the U.S. Bureau of Justice Statistics, only about 5% of all criminal convictions come by way of a trial; the other 95% are resolved by guilty pleas. Of that 5%, only 1% are decided by jury trials. Of the more than one million criminal trials annually nationwide, why have so many Americans decided to voluntarily forego one of the oldest and most cherished rights we possess? To answer that question, we have to be aware a several contributing factors, all of which have been employed to make our criminal justice system operate more efficiently, i.e., guarantee more convictions.

Let’s face it. There is no possible way that our justice system can withstand bench trials (trial by a judge with no jury) for every criminal case, let alone a jury trial which lasts considerably longer. In Virginia, there are more than 200,000 criminal cases statewide each year. The judicial system in its current state is stressed to its limits; if there were to be a small increase in the number of defendants demanding trials, the judicial system would face collapse. If those same defendants demanded jury trials the system would essentially collapse.

To combat the recent rise in crime during the last quarter century, mostly due to more drug crimes and other "vice" crimes, Virginia’s General Assembly added more weapons to prosecutors’ arsenals. One of these weapons was increased minimum sentences. Under Virginia law, if a jury returns a verdict of guilty, they will also recommend a sentence. So long as the sentence is within the minimum/maximum window, it is valid. Judges rarely ignore jury sentences which many times is much longer than a sentence issued by a judge. In Virginia, a jury, unlike a judge, is not permitted to suspend any sentence recommendation. Therefore, if someone is charged with drug trafficking in Virginia, a charge that carries a five year minimum sentence, a judge may suspend four of those five years, a jury may not.

Another law in Virginia allows that any of the three parties, the defendant, judge or the prosecutor, may demand a jury trial. Knowing the minimum sentence range, a prosecutor may threaten to demand a jury trial. Imagine that! A Constitutional Right being used as a threat to the defendant. Any defendant that is facing a minimum sentence of five years, even if they are innocent, may consider a guilty plea with a six month sentence.

Finally there are the Virginia criminal defense lawyers. While jury trials are a staple of romanticism in Hollywood movies, they are grueling and demanding in actuality – on the defendant for sure, as well as the criminal defense lawyer. Negotiating a guilty plea, or even preparing for a bench trial, may require several hours of work. To prepare adequately for a jury trial can take days, weeks, even months. Most defendants can simply not afford the expense of a jury trial which can run into the tens of thousands, even hundreds of thousands for serious and complex matters.

In general, the only people that currently opt for a jury trial may fall into three categories: those who claim to be truly innocent and refuse to plead guilty, those who are just too stubborn to accept the facts and reality, and those who are career offenders and have nothing to lose by a jury trial. If you are charged with a crime in Virginia, you should seek counsel from a criminal lawyer to decide if you should plead guilty or go to trial, and if a trial, should it be by a judge or jury.