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James Payne - Vote 'no' to amendment to waive jury trial
September 15, 2014

By W. James Payne
For StarNews Media
Published: Friday, September 12, 2014 at 4:00 p.m.
W. James Payne



When North Carolina citizens go to the polls this November, they will be asked to vote on an amendment to the State Constitution that would allow defendants facing felony charges to forego a jury trial in favor of a bench trial. A bench trial is a trial by judge as opposed to a trial by jury. In a bench trial, the judge alone has sole discretion to determine the defendant's guilt or innocence.

The proposed amendment, which was recently passed by the N.C. General Assembly without much fanfare, threatens the integrity of our criminal justice system. If voters pass it, felony defendants may give up one of the most fundamental of all constitutional protections – a jury of peers to decide their fate. As a defense attorney with more than 25 years experience in North Carolina courtrooms, I urge citizens to vote no to this amendment.

The American jury has long been a protection of the lives and liberties of her citizens. The jury system protects our individual freedom by prohibiting the government from taking us to prison unless it can prove to every single person on that jury that we have committed a crime. This jury of our peers must not only be unanimous in their judgment, but must agree "beyond a reasonable doubt," the highest legal burden in our judicial system. The fundamental protection of the jury system allows each us to go about our daily lives secure in the knowledge that, if faced with a criminal accusation, our liberty will ultimately be in the hands of our fellow citizens.

One potential outcome of this constitutional amendment is that prosecutors may use the leverage of their charging authority to unduly influence a defendant to waive their right to a jury trial. In a criminal trial, the only charging authority is the State, which is represented by the District Attorney. To obtain a felony indictment, a prosecutor need only submit information to a grand jury for the finding of probable cause, hence the old adage that indictments are so easy to obtain that you can even indict a ham sandwich.

With that power in mind, consider the opportunity for problems. A prosecutor may want to take a case to trial in front of a judge rather than a jury when a conviction may be more likely with a judge. Or, a prosecutor may see that too many cases are waiting for trial and desire to make the docket "more efficient." The prosecutor, under the proposed amendment, could agree to refrain from obtaining indictments on certain offenses or offer to drop charges if that defendant would waive the right to a jury trial on other charges (the Maryland Supreme Court, for one, approved this practice in 2003). Thus a defendant may be faced with sacrificing a jury trial to avoid defending themselves against charges of marginal merit.

Proponents of the amendment point out that 49 states have similar provisions and that North Carolina should get with the times. That argument, however, is illogical. Just because others play with fire does not mean we should follow suit. Prosecutors also have reason to pause over this proposed amendment. Unlike many other states that require a prosecutor's consent, under the N.C. proposal, the prosecutor has no ability to oppose a waiver of jury trial.

The University of North Carolina School of Government has published an excellent discussion of the proposed amendment entitled, "Understanding North Carolina's Proposed Constitutional Amendment Allowing Non-jury Felony Trials" by Jeff Welty and Komal K. Patel. Voters would be well-advised to read the article before heading to the voting booth. It is available at

The right to a jury trial is fundamental for a reason. That reason is our individual liberty. When we diminish the former, we undermine the latter. Let us not meddle with our freedom.

James Payne is a criminal defense attorney with offices in Wilmington and Shallotte, defending white-collar and military justice criminal matters.


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