What Is a Bench Trial in Arizona? Judge or Jury, ARS 13-3983

A bench trial is a trial without a jury. The judge sits as the finder of fact as well as the judge of the law: the same judge who rules on objections and decides what evidence is admissible also decides whether the State has proven each element of the charge beyond a reasonable doubt. The burden of proof does not change. The rules of evidence do not change. What changes is who weighs the witnesses and who delivers the verdict.

In Arizona courts, bench trials are the norm for one large group of cases and the exception for everything else. Most misdemeanors tried in city and justice courts, such as misdemeanor assault, disorderly conduct, and most domestic violence designated offenses, are tried to the judge because Arizona law gives no jury right for those charges. Felonies in superior court are tried to a jury unless the defendant, the prosecutor and the judge all agree to a bench trial. This article explains both halves of that rule, and how a defense lawyer decides which forum to fight in. For the overall sequence of a case, from arrest to verdict, see our guide to the Arizona criminal court process.

When Do You Get a Jury in Arizona?

Article 2, Section 23 of the Arizona Constitution says the right of trial by jury “shall remain inviolate,” and Section 24 guarantees a “speedy public trial by an impartial jury” in criminal prosecutions. Those words have never meant a jury for every charge. Arizona preserves the jury right as it existed at statehood in 1912 and extends it to “serious” offenses, which leaves a category of petty offenses that are tried to a judge.

The Arizona Supreme Court set the current test in Derendal v. Griffith, 209 Ariz. 416 (2005). It works in two steps. First, if the charged offense has a common-law antecedent that carried a jury right at the time of statehood, with substantially similar elements, the defendant is entitled to a jury. Second, if there is no such antecedent, the court asks whether the offense is serious. A misdemeanor punishable by no more than six months in jail is presumed petty, and no jury right attaches, unless the defendant shows that the offense carries “additional severe, direct, uniformly applied, statutory consequences” that approach the loss of liberty a prison term involves. The defendant in Derendal was charged with drag racing, a class 1 misdemeanor with a six-month maximum, and the court held he was not entitled to a jury.

Because every Arizona misdemeanor caps at six months under A.R.S. § 13-707, the six-month presumption covers the entire misdemeanor code. Whether a particular misdemeanor gets a jury therefore turns on its common-law history or on a statute that grants the right directly. DUI is the clearest example of a statutory grant: A.R.S. § 28-1381(F) requires the court to tell a DUI defendant at arraignment that a jury may be requested and that the request “shall be granted.” Every felony carries a jury right because the potential sentence exceeds six months.

Which Arizona Misdemeanors Are Jury-Eligible?

The Arizona Supreme Court’s judicial education materials for limited-jurisdiction judges, updated November 2025, sort the common misdemeanors into two lists. The chart below reproduces that sorting. It is the practical answer to the question most people charged in Scottsdale City Court, Phoenix Municipal Court or a Maricopa County justice court are really asking: will a jury or a judge decide my case?

Two entries on that chart surprise people. First, a domestic violence designation under A.R.S. § 13-3601 does not create a jury right. A misdemeanor assault or disorderly conduct charge with a DV tag is tried to the judge, even though a conviction carries serious collateral consequences, including a federal firearms prohibition. Second, shoplifting is jury-eligible even at the lowest dollar amount, because larceny was a jury offense at common law; the Court of Appeals confirmed in State v. Kalauli (App. 2018) that misdemeanor theft carries the right.

The lists are a guide, not a statute. A defense lawyer who believes a charge belongs in the jury column files a written demand and, if the court denies it, can seek special action review before trial. The jury question is one of the few issues in a misdemeanor case that an appellate court will take up in the middle of the case.

Can You Choose a Bench Trial Instead of a Jury?

Yes, but not alone. A.R.S. § 13-3983 allows a jury to be waived in a criminal case “by the consent of both parties expressed in open court and entered on its minutes,” and Rule 18.1(b) of the Arizona Rules of Criminal Procedure makes the same point: a defendant may waive a jury trial only with the consent of the State and the court. The Arizona Supreme Court enforced that rule in Phoenix City Prosecutor’s Office v. Ybarra (2008), a misdemeanor DUI case in which the defendant wanted a bench trial and the prosecutor refused. The court held that the DUI statute’s jury provision gives the defendant the right to demand a jury, not the right to refuse one over the State’s objection.

When the State and the court do agree, Rule 18.1(b) requires the judge to address the defendant personally, explain the right being given up, and find that the waiver is knowing, voluntary and intelligent. The waiver must be in writing or on the record in open court. A defendant may withdraw it only with the court’s permission, and not once the court has begun taking evidence. In practice the colloquy takes a few minutes at a pretrial conference, and the trial is reset in front of the assigned judge.

How Big Is an Arizona Criminal Jury?

If the case goes to a jury, A.R.S. § 21-102 fixes the size. A charge that authorizes death or a sentence of thirty years or more is tried to twelve jurors. Any other criminal case in a court of record, which includes the superior court, is tried to eight. In a court not of record, which includes most city and justice courts, the jury is six. In every criminal case the verdict must be unanimous. The same statute allows the parties, with the court’s consent, to agree to a smaller jury or to a non-unanimous verdict, which is why a lawyer sometimes proceeds with seven jurors after one is excused rather than start over.

Bench Trial vs Jury Trial: Which Is Better for the Defense?

There is no general answer, and any lawyer who gives one without reading the file is guessing. Defense attorneys weigh the same handful of factors in every case.

A bench trial tends to favor the defense when the defense is legal rather than emotional. If the case turns on whether the State can prove an element with technical evidence, on the meaning of a statute, or on a chain-of-custody or foundation problem, a judge will follow the law to an acquittal that a jury might not reach because the conduct looks bad. Judges are also less moved by sympathy for a complaining witness and less affected by evidence that was admitted but should carry little weight. A bench trial is faster, cheaper and quieter, with no voir dire and no public jury verdict.

A jury tends to favor the defense when the case is a credibility contest or a reasonable-doubt case. Six or eight citizens who must all agree are harder to convince than one professional who has heard the same police testimony hundreds of times. In a DUI blood case, a jury may be more receptive to a toxicologist’s testimony about retrograde extrapolation or uncertainty than a judge who has ruled on the same argument before. Prosecutors also dismiss and reduce more freely on the eve of a jury trial than a bench trial, because a jury trial costs them more.

The judge assigned matters as much as the forum. Before recommending a bench trial we look at who will be hearing it, which is why we track the courts our clients appear in. See our guides to the Scottsdale City Court judges and the Maricopa County Superior Court judges, and our explanation of when you can change your judge in Arizona, which must be done early and before the case is set for a bench trial in front of that judge.

What Happens at an Arizona Bench Trial?

The order of events mirrors a jury trial without the jury-selection day. The State may give a short opening, the defense may give one or reserve it, and the State calls its witnesses. The defense cross-examines each one. When the State rests, the defense moves for a judgment of acquittal on any element the evidence has not covered; judges grant that motion more readily in a bench trial because they have been tracking the elements themselves. The defense then presents its case, if any. You cannot be compelled to testify, and the judge may not hold your silence against you.

After closing arguments the judge may rule from the bench or take the matter under advisement and issue a written ruling days later. If the verdict is guilty, sentencing follows, sometimes the same day in a misdemeanor case. A conviction after a bench trial in a municipal or justice court can be appealed to the superior court under A.R.S. § 22-371 and A.R.S. § 22-425, on the record made below. That record is one more reason a bench trial must be tried carefully: every objection and every offer of proof that is not made is lost on appeal. Our guide to what happens at an arraignment explains where the jury demand is first raised.

How Tamou Law Group Decides Between a Bench Trial and a Jury

Pre-charge advocacy. The best trial is the one that never has to be held. Where a charging decision is still open, we put the defense evidence in front of the prosecutor first. Where the case is filed in a city court, we assess at the first appearance whether the charge is jury-eligible and file the demand in writing so the right is preserved.

Disclosure strategy. We get every piece of the State’s evidence before deciding the forum: body-camera footage, lab records, the officer’s prior testimony and the complaining witness’s statements. The decision to waive a jury is only sound when we know exactly what the judge will hear.

Plea and collateral analysis. If trial is the right path, we weigh the judge assigned, the strength of the legal defenses, the risk of a credibility contest and what a conviction would mean for your license, firearms rights, immigration status and record. If a plea is better, we negotiate it with the trial date set, because an approaching trial is the strongest leverage a defense lawyer has. Start with our Arizona criminal defense overview to see how we approach each type of charge.