Why Voters Should Support the Constitutional Amendment Allowing Criminal Defendants to Waive a Jury and be tried by a Superior Court Judge

August 11th, 2014 by

Revised October 16, 2014

Raleigh, NC – During the 2013 Long Session the North Carolina General Assembly passed Senate Bill 399, “Criminal Defendant May Waive Jury Trial.” If approved on November 4, 2014 it will amend the North Carolina Constitution to provide that an accused may, with the consent of the judge, waive the right to a jury trial and be tried by a Superior Court judge (bench trial). It does not apply to capital cases.

Some say the legislation will take away defendants’ constitutional right to a trial by jury. This is not true. Defendants will still have the right to a trial by jury in Superior Court. They can choose to waive that right if they wish to have a trial by a Superior Court Judge. But the accused does not get to pick the judge. District Attorneys, not defense attorneys, are the ones who set criminal cases on the calendar.

The primary sponsor of the bill, Senator Pete Brunstetter (R-Forsyth), says “the amendment follows the well-established right of a defendant in federal court to choose to be tried by a judge, rather than a jury, and this has been upheld by the US Supreme Court.” I understand that 49 other states allow this as well.

There are several benefits to giving defendants the right to waive a jury trial. Victims are more likely to receive a speedy resolution to their cases. District Attorneys will also have more tools to effectively manage their case loads, allowing for swifter resolution of the criminal justice process.

Only 1.84% of all Superior Court cases last year ended with a jury trial. District Attorneys may not plea bargain or dismiss charges as often if defendants can waive a jury. District Attorneys understand that jury trials demand more time and money, which is why they try to avoid them by plea bargaining and dismissing cases. Bench trials would give District Attorneys a faster and much more economical means of trial. Defendants who would otherwise plea bargain would have the opportunity to assert their innocence at a real trial before a judge.

Waiving constitutional rights is neither new nor unusual. Individuals who choose not to possess a gun waive their right to bear arms. Individuals who choose not to practice a religion waive their right to freely exercise a religion. A property owner gives up the right to that property when she conveys land by deed. When a homeowner allows the police to enter and search her home, the homeowner waives her 4th Amendment right to a search warrant. By testifying at his trial a defendant waives his 5th Amendment right against self-incrimination.

Most rights are not absolute. Almost all rights may be waived by voluntary acts. However, an individual can never sell himself as a slave. This right is guaranteed by the 13th Amendment.

A person waiving the right to a trial by jury is no different from a person waiving any of the other constitutional rights that are waived every day. By voting for the constitutional amendment on November’s ballot you will make a criminal justice system more expeditious and just.