Most everyone knows about their right to trial by Jury under the constitution, but you can also choose to have your trial in front of a judge in criminal cases.
Differences between Misdemeanors and Felonies in Jury Trials
If you are charged with the misdemeanor, you get a jury of six. If your case carries less than six months in jail, the verdict does not have to be unanimous. In felony cases, you are judged by a jury of 12 and the verdict must be unanimous.
What if the jury verdict isn’t unanimous?
The judge will declare a mistrial and you may have to be tried again and you can be tried multiple times if the jury continues to hang without it violating the Double Jeopardy Clause. As a criminal defendant, second trials typically go better for the State because the prosecution has been able to fix whatever problems they had, and they already know your defense and can plan ahead.
Does the jury decide the punishment?
Oklahoma is one of the last seven states that still allows jury sentencing or recommendation. The trial judge to formally sentence the defendant but let’s not kid ourselves, the judge is follow the jury sentencing 99.9% of the time. Another thing people don’t know is that if you were charged with more than one count and convicted after a jury trial, the judges will often enhance your penalty by running the counts consecutively (one after the other). When someone enters into a plea agreement, those counts are going to run concurrently (at the same time) barring exceptional circumstances.
Now in recommending a sentence, the jury does not have the power to give probation. They are not instructed about probation. They only instructed about the range of punishment, which is jail or prison time, and the fine. Some juries that may know more about the criminal justice system may write down a recommendation for probation, but the court is not obligated to follow that. In the rare case that a jury cannot a verdict on sentencing, but could decide the verdict of guilty or not guilty, then ultimately the judge will determine that sentence.
So why would you want to leave your fate in the hands of a judge and not a jury?
I would almost always agree that you want a jury trial in a felony. The state has to convince all 12 people of your guilt and you have 12 ordinary citizens determining sentence most of the time is better for you than a judge; however, on certain crimes, if you were convicted, the punishment is going to be high, regardless, such as child sex crimes.
Sometimes, a judge will not be nearly as shocked or outraged at a property crime as a cross-section of the community might be. In lesser felonies or where the issue comes down more to punishment rather than guilt or innocence or where a jury would be more punitive, having a bench trial on a felony might be in your best interest. The State has a right to jury trial also and they must agree to waive to the bench as well.
On misdemeanors though, unless you have a really solid defense, I recommend trying your case to the bench. I suggest this because most of the time in a misdemeanor case, a judge is not going to give you jail time. They certainly can give you up to a year in jail on most misdemeanors and a fine, but generally most cases are not severe enough to merit that kind of result.
I have tried dozens of jury trials—both felonies, misdemeanors, and termination of parental rights cases. Every trial is a living and breathing entity—no trials are the same. If you are facing a jury trial, you need an attorney that loves the law, loves to litigate, and stands up to the challenge.
Call Shawnee Litigator Law today! 405-273-6510