Voters will decide whether felony criminal defendants can waive jury trials

Posted August 26, 2014

— Criminal defendants charged with all but the most serious felonies would be able to have a judge, rather than a jury of their peers, decide whether they are guilty or innocent if voters approve a state constitutional amendment on the November ballot.

The measure is a seemingly bland bit of policy on a ballot topped by a hotly contested U.S. Senate race, but it deals with one of the most fundamental rights guaranteed by the federal and state constitutions. 

"If we're depriving you of life, liberty or property, you can get a jury trial," said Lori Kroll, a lawyer who served as chief of staff to former state Sen. Pete Brunstetter, R-Forsyth, when he sponsored the bill that sent the amendment to voters. Both Kroll and Brunstetter now work for Novant Health. 

Voters on Nov. 4 will be asked whether they are for or against the following:

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.


Kroll, a former military JAG officer, said defendants in military and federal courts have the option to ask for a bench trial. She was surprised it didn't exist in North Carolina courts. According to a recent report by the UNC School of Government, 49 other states and the federal government allow criminal defendants to opt for bench trials.

Generally speaking, juries in criminal trials determine facts in a case, namely whether someone is innocent or guilty. Judges apply the law and often are charged with handing down sentences. 

In North Carolina, criminal cases involving only misdemeanors, which are generally defined as less serious crimes, are first heard in District Court, where there are no juries, according to Thom Maher, director of the state Office of Indigent Defense Services, which oversees public defenders and private indigent defense attorneys across the state. Those defendants can appeal to Superior Court, where they would have a jury trial, he said. 

Felonies, loosely defined as the most serious crimes, are heard in Superior Court. Currently, the state constitution does not allow for a bench trial cases heard by the Superior Court.

Voters will get to decide whether that will change for most criminal defendants. The only criminal cases where this amendment wouldn't allow a bench trial are capital crimes where prosecutors are seeking the death penalty.

Even if this amendment were to pass, criminal defendants would still be able to demand a jury trial. Despite that, some defense attorneys worry their clients could be pressured to give up their jury trial rights.

"There's a reason that it's been in our constitution for a long time," said Chris Fialko, a defense attorney in Charlotte. "The jury is the last barrier between our citizens and injustice."

Tactical considerations will influence defendants' choices

As drafted, the amendment would require a defendant to request a bench trial in writing or open court and a judge to approve the move.

"Those are two really good safeguards," said Don Vaughan, a Greensboro lawyer and former state senator who is now an adjunct professor of state and local government at Wake Forest University. 

Some lawyers speculate those safeguards will be needed rarely. 

"I wouldn't expect it to happen much," Maher said, who used to do criminal defense work in private practice.

For the majority of cases, he said, both defendants and attorneys will want the chance to appeal to jurors, only one of whom has to balk at the charges in order to avoid conviction.

But there are cases in which a bench trial might be preferable, lawyers say. 

"The theory is that judges are more able to put aside their emotions and deal with the facts of a case," said Michael Rich, a law professor at the Elon University law school in Greensboro.

Generally, having a judge, rather than 12 lay people, sort though guilt or innocence is seen as a tactical benefit to defendants in two different circumstances. 

White-collar crimes that involve allegations of financial fraud or other cases with reams of paperwork or technical details can be confusing for jurors, who might focus on details rather than applying the law, Rich and Maher said. In other cases that involve allegations of particularly brutal or reprehensible actions, Rich said, defendants may see a judge as better able to put aside his gut reaction.

"That's a case where you're dealing with a case with very bad actions by the defendant where the defendant will say he's not guilty of a crime despite the behavior," Rich said.

Examples might include child pornography or rape, where the facts and evidence in the case might "inflame" jurors to seek punishment, despite the law.

North Carolina's amendment would favor defendants more than federal rules, Rich said. In federal court, a prosecutor can block a defendant from seeking a bench trial. Prosecutors wouldn't have that automatic privilege in North Carolina courts, although they would like to be able to make a case to the judge as to why a jury should be empaneled. 

"It's a tactical choice," Rich said. "I suppose the risk is you're putting your future in one person's hands rather than 12."

Neither the North Carolina Bar Association, a statewide group representing most lawyers, nor the North Carolina Advocates for Justice, a statewide group of trial lawyers, has taken a position on the amendment. 

The General Assembly voted to put the measure before voters in 2013, and it passed the Senate on a 44-0 vote and in the House 104-1. 

"People felt very comfortable this was something we ought to allow," said Rep. Rick Glazier, D-Cumberland, a lawyer who spoke on behalf of the bill when it cleared the House.

Amendment could be a cost saver

Backers of the amendment said it would also save courts and defendants time and money. 

Empaneling a jury can be time-consumer and costly. Most defense attorneys charge by the hour, and prosecutors face the challenge of moving through courts that are often described as over-burdened.

"The courts in North Carolina are jammed," Vaughan said. "In order to pick a jury on certain issues, it can take days."

Opting for a bench trial when there are facts in dispute could save time for both the defense and prosecution, he said. 

But those who have been concerned about the amendment say they are worried unscrupulous prosecutors could push defendants to accept a bench trial out of expediency. 

"The only concern I would have is whether there would be any overt or subtle pressure on defendants to waive jury trial," Maher said.

The possibility that harried prosecutors could push defendants to accept a bench trial with threats of more charges or more vigorous prosecution if they insist on a jury trial was  raised as part of the the School of Government's report, as well as by practicing defense attorneys. 

"Although I think 99 percent of prosecutors are well-intentioned, there may be cases where defense lawyers feel a pressure to tell their clients, 'Look, you really ought to waive your jury trial rights here, and you might end up with a better plea offer if you do,'" said Fialko, the Charlotte defense attorney with Rudolf Widenhouse & Fialko.

"In this day and age of growing police power, I'm just worried about citizens giving up their rights to a jury trial," he said.

While the amendment is couched as the defendant's right to waive, Fialko said it would give prosecutors entree to put pressure on defendants. 

"For the longest time, you've been able to say, 'Sorry, it's in the Constitution,'" he said, adding that the amendment "will chill our right to a jury trial." 

Kroll and Rich both said rules of professional conduct – and a defendant's own lawyer – should guard against such pressure. 

Absentee by-mail voting begins on Sept. 5. Early in-person voting begins Oct. 23 for the Nov. 4 General Election. 


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  • Norman Lewis Aug 28, 2014
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    I initially thought allowing defendants to opt out of a jury trial would be a good idea then I thought of a very good reason why not. One overly liberal judge, one crooked judge, and our judicial system would be tainted forever. Criminals would line up for the "good" judge to hear their cases. A jury though not perfect, almost ensures no one persons bias or prejudice could sway a decision on guilt or innocence. Lawyers would arrange court dates to get the "right" judge.

  • proudgrandmomma Aug 28, 2014

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    well also the rest of the nation seems to be choosing for same sex marraiges and reefer smokers so I guess by your'e logic we should too even though the voters said no?? I don't think so we need to maintain are values and let the voters decide things.

  • Tammy Rush Aug 28, 2014
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    Felons lose (some) rights after they're convicted, not before.

  • miseem Aug 27, 2014

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    I commend the Brad Cooper jury for delivering a correct verdict, and I disagree that many judges are corrupt. While a judge's ideology and history many influence decisions on the bench, especially in appeals and Supreme Court decisions, there are few cases of outright corruption on the bench. I don't think many sitting judges would accept an illegal payment or consideration that can end up with them in jail.

  • Jerry Sawyer Aug 26, 2014
    user avatar

    Felon's lose their rights when they hurt us.

  • Kristin Byrne Aug 26, 2014
    user avatar

    I don't see the big deal. It seems NC is the only state that doesn't already do this, why not join the rest of the nation? Let the defendant pick whether they want the judge or jury.

  • Brenda Matthews Aug 26, 2014
    user avatar

    Well nobody is saying a defendant will be REQUIRED to have a trial without jury, only they can CHOOSE that option if they want.

  • iopsyc Aug 26, 2014

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    If this passes, you still could have that since it would be your decision as the defendant to waive the jury off.

  • jurydoc Aug 26, 2014

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    The defendant is not waiving a trial, just a trial by jury. They still get a bench trial (trial by judge) if they want to. And why would a person who waived the jury trial be threatened? Or do you mean threatened INTO waiving the trial by jury? This is addressed in the article. It is up to the defense attorney to protect his/her clients rights and interests. Plus, the waiver has to be done "on the record" and/or in open court so the judge can ask the defendant questions, if needed, and make a determination that the waiver is voluntary.

  • 68_dodge_polara Aug 26, 2014

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    What do you mean? Why would someone threaten someone who waives a trial by a jury?