One District Court judge also predicted that there would be "a tidal wave of complaints against judges in criminal cases".

The distinction may best be illustrated by using the official jury instructions prepared for judges in criminal cases to explain the statutory provisions involved.

Five years ago the Court empowered judges in criminal cases to examine whether prosecutors were using peremptory challenges to exclude jurors of the same race as a defendant.

While Lord Justice-Clerk (an appeal judge), he exercised his right to sit as a trial judge in criminal cases, and handed out long sentences for such crimes.

Amnesty International, the human rights organization, argues that having an immigration official rule on asylum cases would be like having the police or prosecutors serve as judges in criminal cases.

In R. v. Wray the term "probative value" is used to explain that "judges in criminal cases do not have a discretion to exclude evidence because of how it was obtained."

In Booker, the Court held that because the Federal Sentencing Guidelines were mandatory and binding on judges in criminal cases, the Sixth Amendment required that any fact necessary to impose a sentence above the top of the authorized Guidelines range must be found by a jury beyond a reasonable doubt.