Bench Trial or Jury Trial in a Michigan Domestic Violence Case

Anyone charged with a crime in Michigan, including a 93-day misdemeanor, has a right to a jury trial.^[1] A jury trial is the default. A bench trial, in which the judge alone decides whether the charge has been proved, happens only if the defendant waives a jury with the consent of the prosecutor and the approval of the court.^[5]

This page explains the jury right in domestic violence cases, how many jurors sit, whether they must all agree, how a jury is waived, and what is the same and different between the two kinds of trial.

Is there a right to a jury in a domestic violence case?

Yes, for every charge. Michigan's Constitution provides that in every criminal prosecution the accused has the right to a speedy and public trial by an impartial jury, and the Court of Appeals has held that a defendant has a constitutional right to be tried by a jury in misdemeanor cases even when conviction would not result in imprisonment.^[1]

The defendant is told about the right early. At arraignment on a district court offense, the defendant must be informed of the right to a trial and to a trial by jury when required by law.^[7] In district court the right to a jury trial is not waived unless the defendant has been informed of it and has waived it in a writing made part of the file or orally on the record.^[8]

How many jurors, and must they agree?

	Misdemeanor (district court)	Felony (circuit court)
Example charge	First-offense domestic assault, punishable by up to 93 days in jail[9]	Third-offense domestic assault, a felony punishable by up to 5 years in prison[10]
Jurors who decide the case	6[2][4]	12, unless the parties stipulate to fewer with the court's consent and the defendant's personal waiver[3]
Unanimous verdict required?	Yes; the court may receive only a unanimous verdict (MCL 600.8355)[4]	Yes; a jury verdict must be unanimous (MCR 6.410(B))[3]
Peremptory challenges per defendant	3[11]	5, or 12 if the offense is punishable by life imprisonment and the defendant is tried alone[11]

A court may seat more jurors than the number who will decide the case. In district court the judge may direct that 7 or more jurors be impaneled; after the instructions are given and the case is submitted, names are drawn to reduce the jury to 6.^[2]

Unanimity applies to any verdict, guilty or not guilty. Jurors are told that a verdict in a criminal case must be unanimous, that they should make every reasonable effort to reach agreement, and that none of them should give up an honest opinion just because other jurors disagree.^[12] If a jury in a felony case cannot agree, the court may declare a mistrial after determining that the jury is deadlocked.^[13]

How is a jury chosen?

Jury selection is the process of questioning prospective jurors and removing those who should not sit. Under the felony rules, the scope of the questioning is within the court's discretion; it is conducted to discover grounds for challenges for cause and to help the parties use their peremptory challenges, and the court may question the panel itself or let the attorneys do so. If the court finds a ground for challenging a juror for cause, it should excuse the juror on its own initiative, and on a party's motion it must.^[14]

Peremptory challenges are challenges each side has by right, separate from challenges for cause. Each defendant has 3 in a district court trial and 5 in most felony trials, and the prosecutor has the same number as a defendant tried alone.^[11] What comes after the jury is sworn is covered in What happens at a domestic violence trial.

What is a bench trial?

In a bench trial there is no jury. The judge hears the evidence, decides what the facts are, applies the law, and announces the verdict. The proof required does not change: the defendant is presumed innocent and the prosecutor must prove guilt beyond a reasonable doubt.^[6]

The felony trial rules add two features to a bench trial:^[15][16]

• The court must find the facts specially, state separately its conclusions of law, and state its findings and conclusions on the record or in a written opinion made part of the record.^[15]
• After the prosecutor has rested, the defendant may move for acquittal on the ground that a reasonable doubt exists, without waiving the right to offer evidence if the motion is not granted. The court may then decide the facts and render a verdict of acquittal, or wait until the close of all the evidence.^[16]

Those two rules are in the subchapter of the court rules that governs felony trials.^[15][16] Subchapter 6.400 is not among the rules that MCR 6.001(B) lists for cases in district court.^[17]

Can the defendant choose a bench trial?

Only with two other approvals. MCL 763.3 says that in all criminal cases the defendant may, "with the consent of the prosecutor and approval by the court," waive a determination of the facts by a jury and elect to be tried before the court without a jury.^[5] The felony court rule says the same thing.^[18]

So a defendant has a right to a jury but no matching right to refuse one. If the prosecutor will not consent, or the judge does not approve, the case is tried to a jury.^[5]

How a waiver is made

1. Timing. Except in cases of minor offenses, the waiver must be made in open court after the defendant has been arraigned and has had an opportunity to consult with legal counsel.^[5]
2. Form. Except in cases of minor offenses, the waiver must be in writing, signed by the defendant, and filed in the case. The statute sets out the wording, which includes: "I fully understand that under the laws of this state I have a constitutional right to a trial by jury."^[5]
3. What counts as a minor offense. The Code of Criminal Procedure defines a minor offense as a misdemeanor or ordinance violation with a maximum of not more than 92 days and a maximum fine of not more than $1,000. First-offense domestic assault carries up to 93 days, so it is outside that definition and the writing and open-court requirements apply to it.^[19][9]
4. Advice from the judge. In a felony case, before accepting a waiver the court must advise the defendant in open court of the constitutional right to trial by jury and confirm that the defendant understands the right and voluntarily chooses to give it up.^[18]
5. District court record. In district court, the jury right is not waived unless the defendant was informed of it and waived it in a writing made part of the file or orally on the record.^[8]

What is the same in both kinds of trial?

• The presumption of innocence and the burden of proof. The prosecutor must prove each element of the crime beyond a reasonable doubt, and the defendant is not required to prove innocence or to do anything.^[20]
• The elements. For domestic assault the prosecutor must prove an assault or an assault and battery, and one of the listed domestic relationships.^[21][22]
• The defendant's rights. The defendant may question the witnesses against him or her, have the court order defense witnesses to appear, and testify or remain silent without that silence being used against the defendant.^[6]
• A motion after the prosecution rests. The felony trial rules allow one in both kinds of trial, with different wording: in a jury trial the court on the defendant's motion must direct a verdict of acquittal on any charge for which the evidence is insufficient to sustain a conviction, and in a bench trial the defendant may move for acquittal on the ground that a reasonable doubt exists.^[23][16]

What is different?

	Jury trial	Bench trial
Who decides the facts	6 or 12 jurors, who must be unanimous[4][3]	The judge alone, after a jury waiver[5]
Who must agree to this kind of trial	No one; it is the defendant's right[1]	The defendant, the prosecutor and the court[5]
Jury selection and jury instructions	Yes; jurors are instructed on the elements and the burden of proof[24]	None
Reasons for the verdict	Under the felony rules the jury returns its verdict in open court[13]	In a felony case the judge must state findings of fact and conclusions of law[15]

Thinking about the choice

The decision belongs to the defendant in the first instance and is one to make with a lawyer who knows the case and the court. Questions to raise with that lawyer include:

• How much of the case turns on whether a witness is believed, and how much on a legal issue?
• Is there evidence the judge will have to rule on, such as prior acts or a statement to police, that the same judge would then have to set aside when deciding the facts in a bench trial?
• Would a written or stated explanation of the verdict be valuable?
• Will the prosecutor agree to waive a jury at all?

The broader decision between resolving a case and trying it is covered in Plea or trial: how to decide. For the issues a judge or jury will be weighing, see Defenses to domestic violence charges, Prior acts of domestic violence and Evidence used in domestic violence cases.

For witnesses

A witness's role is the same in either kind of trial: to answer questions under oath from both sides. In felony and serious misdemeanor cases the victim has the right to be present throughout the trial unless the victim is going to be called as a witness, in which case the victim may be kept out of the courtroom for good cause until first testifying.^[25] See What to expect as a witness and Crime victims' rights.

What people get wrong

"You cannot get a jury on a 93-day misdemeanor." A jury trial is available for every criminal charge.^[1]

"A misdemeanor jury has 12 people." A district court jury has 6.^[2]

"Six jurors only need a majority." The court may receive only a unanimous verdict.^[4]

"The defendant decides whether the judge or a jury hears the case." A jury waiver needs the prosecutor's consent and the court's approval.^[5]