Some states do not require the consent of the prosecution for a bench trial but that is not the rule in federal court (and some states). The pandemic has created new problems with this issue. and at least in one case a federal judges has decided that the request for a bench trial should be granted even though the prosecution has objected.
From U.S. v. Cohn, decided Wednesday by Judge Gary R. Brown (E.D.N.Y.):As a result [of the epidemic], at this writing, despite significant effort, research and investment by the Court, this district has not held a jury trial since March of this year, and in-person proceedings have been limited, although the Court has been gradually expanding its operations.This backdrop provides the context for a dispute in the instant criminal prosecution, in which securities fraud-related charges have been pending against the defendant for more than a year. At the Court’s suggestion, the parties considered whether a bench trial could provide an appropriate avenue for resolution of the charges given the complexities posed by a potential jury trial in the current circumstances. After careful consideration with counsel, the defendant agreed to waive his constitutional right to a trial by jury and consented to a bench trial. The Government, on the other hand, has declined to consent to a nonjury trial, insisting instead on a jury trial when that becomes a viable alternative for this case….While the Federal Rules of Criminal Procedure require the Government’s consent, in extraordinary situations, the Court is empowered to conduct a bench trial upon the defendant’s waiver even over the Government’s objection when required by the interests of justice. Upon careful consideration, the Court finds that the unusual, if not unique, circumstances presented by this particular case dictate that a bench trial be held notwithstanding the Government’s objection. The facts and circumstances considered within the legal framework discussed herein include
- the length of time during which the charges have been pending, which in this case is more than a year;
- the uncertainty of providing a jury trial in this particular case within an ascertainable time frame;
- the complexity of this case—involving weeks of testimony and hundreds of thousands of pages of documents—which will serve to further complicate a jury trial under present circumstances;
- the defendant’s age and health profile, which not only render a trial more difficult but may bear upon his right to testify in his own defense;
- the marked public interest in this case and the delays in its resolution, which implicates the public’s right to a speedy trial; and
- evidentiary issues already identified by the Court raising the specter of possible juror confusion.
Upon consideration of the facts and circumstances, as discussed below, the Court will grant the defendant’s application to hold a bench trial in the absence of the Government’s consent….The court’s analysis is pretty detailed; if you’re interested, read the entire opinion.