It’s my right to trial and I’ll waive it if I want to!

What are the potential benefits and consequences of North Carolina’s recently passed jury trial waiver amendment?

Photo by Joe Gratz (Flickr)

Is promoting judicial efficiency worth the potential cost of diminished constitutional protection for criminal defendants?  This is the dilemma posed by the North Carolina Criminal Defendant May Waive Jury Trial Amendment, a new addition to the state’s constitution that was passed by statewide ballot measure on November 4, 2014.  The amendment effectively allows a criminal defendant who is not facing the death penalty to waive his right to a trial by jury and elect instead for a bench trial in a North Carolina Superior Court.

The legislatively referred constitutional amendment began in the North Carolina General Assembly, sponsored by now-retired Sen. Peter Brunstetter (R-Forsyth) as Senate Bill 399.  The proposed amendment was met with overwhelming support in the state legislature: it unanimously passed the Senate and was opposed by only one vote in the House of Representatives. Rep. Michael Speciale (R-Craven), the lone dissenter, questioned the amendment’s purpose.  “On whose backs will this come?” he asked.  “The state would like to cut down on costs for providing legal defense to the indigent.  Sadly, they will be the ones targeted because disposing of their cases by a judge alone is generally quicker and cheaper than dragging out a jury trial.”

The proposed amendment would change the interpretation of Article I, section 24 of the North Carolina Constitution to allow a criminal defendant to choose whether to be tried by either a judge or a jury.

In order to assist and educate North Carolina voters, the Constitutional Amendments Publication Commission adopted a summary explanation of the amendment’s proposed changes.  The Commission stated that under the 1971 North Carolina Supreme Court case State v. Hudson, a criminal defendant must have a jury trial, and that right may not be waived.  The proposed amendment would change the interpretation of Article I, section 24 of the North Carolina Constitution to allow a criminal defendant to choose whether to be tried by either a judge or a jury.  A defendant who chooses a bench trial will waive his constitutional right to a jury decision, the Commission explained.  The Commission’s summary outlined the consequences of a vote either way: a majority FOR the amendment would allow criminal defendants to waive their jury trial rights, while a majority AGAINST the amendment would keep the requirement as written in the North Carolina Constitution.

On Election Day, voters were asked to weigh in on the following options:

[ ] FOR [ ] AGAINST

Constitutional amendment providing that a person accused of any criminal offense for which the State is not seeking a sentence of death in superior court may, in writing or on the record in court and with the consent of the trial judge, waive the person’s right to a trial by jury.

North Carolina voters approved the Jury Trial Waiver Amendment by 53.1 percent, thereby altering the state’s constitution.  Moving forward, criminal defendants in non-capital cases may waive their right to a trial by jury.  Such a waiver must be made either in court or in writing, and the judge must agree to the request.  If the defendant successfully waives his right to a jury trial, the judge will decide whether the person is guilty.  Although the amendment only affects state criminal trials, federal law notably already allows for this type of waiver.

The amendment brings a number of potential positive changes to the North Carolina justice system.  Allowing a criminal defendant to opt for a bench trial over a jury trial will promote efficiency within the state’s justice system because bench trials require fewer resources and are generally less time consuming.  Further, in complex cases, a judge may be more familiar with the law and thus better equipped to analyze the facts.  The amendment not only offers positive changes for the justice system, but also for the defendant, who will have more control over the trial which will decide his or her fate.

Every other state in the nation, the federal courts, and the courts of the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands already allow criminal defendants to waive their right to a jury trial.

North Carolina is behind other jurisdictions in adopting this change.  Every other state in the nation, the federal courts, and the courts of the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands already allow criminal defendants to waive their right to a jury trial.  In fact, the United States Supreme Court ruled on this issue almost fifty years ago in Singer v. United States, holding that there is “no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury – the very thing that the Constitution guarantees him.”  This begs the question, then: why the delay in change for North Carolina?

Campbell University School of Law Professor Gregory Wallace suggests that it may be because waiver is a statutory provision in other states, as opposed to a constitutional one.  It is more difficult to amend a constitution than to change a state statute, and thus, easier to change the law on jury trial waivers in those states with statutory provisions.

Professor Wallace expressed two additional concerns over this recent change to the North Carolina Constitution: (1) unlike jury waiver provisions in a majority of other jurisdictions, the amendment does not require the district attorney’s consent; and (2) this change creates less constitutional protection for the defendant.  As he explained, the constitution’s original language protected the defendant from a de facto collusion.  Without prosecutorial consent, there is a risk for potential “cooperation” between judges and attorneys because state judges are elected in North Carolina and the majority of campaign funds derive from attorneys via the state’s bar association.

Moreover, jury trial rights are one of the original civil rights purposefully afforded to us by our founders.  As Professor Wallace articulates, one of the geniuses of our jury system is that it can correct the injustices of the system.   Therefore, this amendment could create worrisome shortcuts in the name of efficiency.  It is not that there is anything wrong with the amendment itself; this much is clear because the rest of the country allows criminal defendants to waive the right to a jury trial.  However, the potential for diminished protection creates enough hesitation as to require a second glance at what this change really means for North Carolina constitutional law.

 

Ana Hopper, Editor-in-Chief Emeritus
About Ana Hopper, Editor-in-Chief Emeritus (33 Articles)
Ana Hopper is a 2016 Campbell Law graduate and served as the Editor-in-Chief of the Campbell Law Observer for the 2015-2016 academic year. She is originally from Winston-Salem and graduated from the University of North Carolina at Charlotte in 2012 with a Bachelor of Arts in Political Science and Sociology. The summer following her first year of law school, Ana worked as a research assistant for Professor Amy Flanary-Smith. Ana also interned at the Criminal Appellate Section of the Department of Justice her second year, and at the New Hanover District Attorney's Office as an intern the summer before her third year. She served as a Legal Research and Writing Scholar, Vice President of BLSA, and Community Chair of Lambda during her time at Campbell.
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