Skip links

“Rule 23(a) of the Federal Rules of Criminal Procedure Should be Amended to Eliminate the Requirement that the Government Consent to a Defendant’s Waiver of a Jury Trial” Published By American College Of Trial Lawyers

The Federal Criminal Procedure Committee of the American College of Trial Lawyers, now chaired by Steptoe & Johnson partner Brian Heberlig, who succeeded Kostelanetz partner Sharon L. McCarthy in that role, has published a white paper proposing an amendment to Fed. R. Crim. P. 23(a) to eliminate the requirement that the government consent to a bench trial. The white paper was written by current and former prosecutors as well as defense attorneys who serve on the Federal Criminal Procedure Committee (the “Committee”), and it was compiled with input from College members who are state prosecutors.

As the introduction to the white paper notes, “The backlog of federal criminal cases created by the COVID-19 pandemic exposed logistical and constitutional issues that arise when the availability of a bench trial is conditioned on the government’s consent. Forced to await the enpanelment of at least twelve jurors willing to sit in close proximity in a windowless courtroom, defendants have endured prolonged pretrial detentions and systematic burdens on their rights to speedy trials.”

“This situation triggered discussion in the [Committee] about the broader question of whether a defendant should be allowed to waive the right to a jury trial without the consent of the government. The Committee examined the constitutional, legal, and practical issues with eliminating government consent.”

The white paper includes seven sections: introduction, the background of Rule 23(a), state laws regarding a defendant’s ability to obtain a bench trial, bench trial policies in U.S. Attorney’s offices, statistics on the backlog of criminal cases in the federal court system created by the COVID-19 pandemic, court conditions related to COVID-19 that led the court in United States v. Cohn to authorize a bench trial over the government’s objection, and the Committee’s recommended amendment to Rule 23(a).

The full white paper can be found here.