​In 2010, I wrote a column for this newspaper arguing that because corporate executives were then being depicted in the media "as reckless and greedy miscreants responsible for the current economic crisis," defense counsel representing them in federal criminal cases should at least consider the possibility of seeking a non-jury bench trial, particularly where the client may have been involved in a notorious scandal or needed to rely on a highly technical legal defense.

Nearly a dozen years later, clients in high profile white-collar criminal cases remain widely despised by the general population of potential jurors. Federal prosecutors continue to enjoy an astronomically high conviction rate in front of juries and judges are generally loath to engage in overly time-consuming, individualized voir dire except in extraordinary cases.

​On the other hand, the prospect of more favorable fact-finding from the bench has dramatically improved, as President Biden reshapes the federal judiciary with appointees who are far more likely to have previously worked as public defenders and academics than as prosecutors. Also, according to a recent study published by the Pew Research Center, although only 12% of federal defendants who went to trial had their cases decided by a judge, around 40% of such defendants were acquitted, as compared with just 14% of those who faced a jury trial. The Pew Research Center study is available at John Gramlich, "Only 2% of federal criminal defendants go to trial, and most who do are found guilty," Pew Research Center (June 11, 2019). So the trends suggest we may see an uptick of more federal criminal defendants strategically opting for bench trials in the near future.