News & Publications Election 2014: Voters to decide on constitutional amendment to waive jury trial
November 04, 2014

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Judge or jury? That’s the question that will be put to voters today as North Carolinians vote on a constitutional amendment to determine whether one can waive his or her right to a jury trial.

If adopted, the constitutional amendment will allow for a person charged with a criminal offense to waive his or her right to a jury trial and instead have a judge hear the case and deliver a verdict.

According to a report by the University of North Carolina School of Government, all 49 other states and the federal court system allows for such waivers.

The proposed amendment will read:

No person shall be convicted of any crime but the unanimous verdict of a jury in open court, except that 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 the court and with the consent of the trial judge, waive jury trial, subject to procedures prescribed by the General Assembly. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.”

Arguments in favor of the amendment—which passed the Senate unanimously during the 2014 session—include increased efficiency in case management, accuracy in delivering verdicts and that it gives the defendant a choice between a bench trial or a jury trial.

“One argument is that allowing bench trials will save time that would otherwise be spent on jury selection and money that would otherwise be spent paying jurors,” the School of Government report reads. “Indeed, it seems that the original purpose of the proposed amendment was to reduce the burden on superior courts.”

But many in the legal field—including prosecutors and defense attorneys—argue the waiver is detrimental to the justice system.

“The amendment made it through the General Assembly with little or no fanfare,” said James Payne, a defense attorney who specializes in capital cases and white collar crime. “But what this amendment would do would be to provide that, if a person were charged with a crime and facing a jury trial in superior court–because that’s the only place in North Carolina where a defendant would face a jury trial–that defendant would have the right to—in writing or on record—request that the judge, alone, decide guilt or innocence.”

Payne disagrees with the report’s claims regarding efficiency in case management.

“The concern about efficiency is: We don’t want to sacrifice our individual liberties for the sake of ‘efficiency.’ That’s not what the judicial system is all about,” Payne said. “It’s not about making sure cases get speedily handled through the trial or speedily handled through the justice system. The purpose for the criminal justice system is to ensure that we find the truth. And even if that takes longer than folks might want it to be, what we ultimately want is the truth. We want the individual liberties protected; we want the rights of the states protected.

“And if we are concerned about ‘let’s make sure it happens fast,’ that is the wrong perspective because what you’re winding up doing then is you’re sacrificing liberty and freedom for speed. That is not an equal trade off.”

The waiver would not require prosecutors’ consent, a point with which both Payne and District Attorney Jon David disagree.

“District attorneys do not get any say in whether the criminal case will be tried before a judge or jury,” David, who serves as DA for Brunswick, Columbus and Bladen counties, said. “The criminal has all the power to decide whether to ask the judge to hear the case instead of the jury. This ultimately silences the victim, law enforcement and the DA’s office and the community’s voice on all criminal cases including but not limited to rape, murder, child molestation, drug traffickers.”

Another benefit listed in the School of Government report is accuracy, stating that bench trials “may yield more accurate results than jury trials.”

“For example, judges likely are more familiar than most jurors with DNA analysis, crime scene processing and other forensic techniques, and so may be better able to determine whether the scientific evidence in a particular case is strong or weak,” the report reads.

“Think about what that says about your fellow men and women citizens,” Payne countered. “What an elitist perspective that is on your fellow citizens to say that, ‘Well, our neighbors are not smart enough to understand the facts; they’re not smart enough to understand the law. We have to have somebody who has particularized knowledge to do that.’ That is not what we believe. We don’t believe in that. We believe that our rights, our wrongs, whether we did or did not do something should be judged by the moral compass of our fellow citizens; not one person simply because that one person may have some specialized knowledge.

“We believe that we, the people, are the ultimate check on the power of government and to say, ‘We’re going to cede that to somebody with particularized knowledge’ flips the concept of liberty.”

The School of Government report cites “choice” as another positive outcome of the waiver.

“Defendants would still have their ‘constitutional right to a jury trial if they want one.’ From this perspective, allowing bench trials simply provides defendants with more options and control over their cases,” the report states.

Payne disagrees, arguing this could lead to pressuring a defendant to waive his or her right to a jury trial.

“For instance, in this particular amendment, the provision is the trial must be one in which the state is not seeking the death penalty,” Payne said. “Well, who makes the decision about whether the death penalty is going to sought? That is the prosecutor. The State has the right to decide that. The defense attorney does not decide whether the State is going to seek the death penalty. So you have a potential situation in which the State would say, ‘If you will allow a judge to try you for first-degree murder, we will decide that we won’t seek the death penalty against you.’

“The defendant would be put in the choice of having a judge decide if he or she is guilty of first-degree murder or facing the death penalty. That’s a very, very difficult situation to put an individual in.”

The School of Government forecasts that a “modest number,” between 5 and 30 percent of defendants, would waive jury trials.

“Never, ever think that you cannot be sitting beside me, or one of your loved ones sitting beside me,” Payne said. “It is very easy to become the target of a criminal investigation. It is easy to become the target of somebody saying you did something wrong. It is so easy, for instance, for a disgruntled person to go to a magistrate and have a warrant sworn out for your arrest.

“The fundamental protection for that is the right of your peers to say whether or not you did something wrong.  The role of the people in the criminal justice system is something that we can never diminish. Do not sacrifice your individual liberty just because everybody else is doing the same thing.”