What was N.C.’s jury-trial ballot amendment about?

North Carolina voters did more than move representatives around Nov. 4: They voted on an amendment to the state constitution that could possibly have major repercussions for criminal justice procedure. But what does that amendment do?

Fifty-three percent of N.C. voters approved the amendment, which, if adopted by legislators, would enable “a person accused of any criminal offense for which the state is not seeking a sentence of death in superior court [to], in writing or on the record in court and with the consent of the trial judge, waive[their] right to a trial by jury.” (Forty-seven percent voted against the amendment.)

Translation: Felony offenders, save in capital cases, can waive their right to a jury trial with the consent of the presiding judge.

The option brings North Carolina in line with every other state and federal jurisdiction in the nation, says Buncombe County’s  newly elected District Attorney Todd Williams: “North Carolina was the only jurisdiction that didn’t allow this. Every other state, as well as the federal courts, allow for a waiver. What this does is gives defendants of another means of disposing their cases.”

In a report issued before the vote, the North Carolina School of Government concurs and brings up the possibility of increased efficiency with the system and decreased costs. Jury trials are expensive and time consuming, and, report authors conclude, “it seems that the original purpose of the proposed amendment was to reduce the burden on the superior courts.”

In addition, judges typically understand more about the court system than regular citizens, and thus could be more objective in certain instances: “Because they are used to dealing with cases involv­ing serious, violent crimes, judges may be less influenced by the nature of the charges and bet­ter able to focus carefully on whether the defendant is culpable.”

But with possible good comes possible bad, and the SOG report outlines several possible drawbacks of the amendment, the first being “undue favoritism.” One study, the report says, found that judges acquitted defendants at a rate three times what juries did, and that juries often have more of an ability to remain impartial as they are not part of the criminal justice world and have little familiarity with lawyers and judges.

Secondly, the amendment might increase “judge shopping,” where lawyers maneuver to have a certain case heard in front of a particular judge with a history in similar cases.

But, says Williams, “That occurs now. … People will try to get in front of a judge who might give them a more favorable ruling. It just happens in the context of jury trial.”

There’s going to be judge shopping under the new rule, he adds, “but that already is an issue.”

The SOG report also mentions the decreased participation of the citizenry in court proceedings, while noting that jury service is “also an inconvenience” and a reduced amount of juries “might be welcomed by some North Carolinians.”

It then goes onto the threat of increased pressure on a defendant to waive the right to a jury trial either subconsciously or by incentive, as in the case of Smith v. State of Maryland (2003), where a defendant appealed his waiver of jury trial to the Maryland State Court of Appeals.

“The defendant,” SOG says, “agreed to have a bench trial instead of a jury trial in exchange for the prosecutor’s dismissal of some of the charges against the defendant.” This was despite evidence the defendant wanted a jury trial. His defense attorney stated: “I will admit my client has really wanted a trial by jury, but he’s agreed in exchange for receiving certain consideration from the Court…”.

The Maryland Court of Appeals struck down the appeal, saying that the “appellant was well aware of the constitutional right he was waiving and that his decision to waive the right was not improperly influenced by the trial court. Appellant’s waiver was knowing and voluntary. …”

Had the defendant lived in North Carolina at the time, his case would have gone to jury trial automatically.

With the way the new amendment is written, says Williams, “The beauty of it is that the district attorney is totally out of it. The district attorney has no voice, and I think it wise to keep the district attorney out of the election of whether a defendant goes through a judge or jury.”

“Although pressure to waive is a legitimate concern, [it] does not appear to be overwhelming in most jurisdictions,” the SOG report says.

“In other jurisdictions,” says Williams, “defendants used the bench trial option between 15 and 30 percent of the time. Most cases are still jury trials, and I think those predications will hold in North Carolina.”

The SOG report agrees, saying that “[M]ost defendants who take their cases to trial continue to choose jury trials.”

Ironically, the small number of people who would take the bench trial option would limit the increased efficiency and savings that the amendment was partially created to facilitate: “Any substitution of bench trials for [guilty] pleas would tend to offset any efficiency gains resulting from fewer jury trials,” says the SOG. “But even assuming … that 15 percent of felony trials would be bench trials; and that bench trials take only half as long as jury trials, the total amount of time …would be reduced by just 7.5 percent.”

But, Williams insists, the amendment is merely about the defendant’s options in the first place. “Not everyone is happy with the way their cases go in court,” he says. “But the amendment, as written, does give defendants a new option they didn’t have before. I think the voters have made a sound judgment in approving this amendment.

Whether it turns out to be boon or burden, the amendment brings North Carolina in line with the rest of the country regarding felony court proceedings; time will tell what its effects will be, but no matter what, it heralds a major change in criminal justice in the state.