North Carolinians approved a proposed constitutional amendment this past Tuesday that would allow defendants in criminal cases set in Superior Court to choose a bench trial over a jury trial.
Article XIII, Sec. 4 of the North Carolina constitution provides:
A proposal of a new or revised Constitution or an amendment or amendments to this Constitution may be initiated by the General Assembly, but only if three-fifths of all the members of each house shall adopt an act submitting the proposal to the qualified voters of the State for their ratification or rejection. The proposal shall be submitted at the time and in the manner prescribed by the General Assembly. If a majority of the votes cast thereon are in favor of the proposed new or revised Constitution or constitutional amendment or amendments, it or they shall become effective January first next after ratification by the voters unless a different effective date is prescribed in the act submitting the proposal or proposals to the qualified voters.
Currently, all North Carolina criminal cases in Superior Court require a jury trial. A defendant may not waive his right to a jury trial and allow a judge to decide the case. In the federal system and in 49 other states, by contrast, a defendant may choose a bench – or judge – trial over a jury trial with the approval of the court.
In most states, the prosecutor must consent to a trial by judge. The voter-approved amendment in North Carolina does not require the prosecutor’s consent.
How Will Judge Trials Change North Carolina Criminal Practice?
In most cases, defendants will continue to choose jury trials in Superior Court, for the simple reason that juries are generally more sympathetic to defendants and because in order to “win” a jury trial, a defendant merely needs to convince a few jurors to hold out, thereby hanging the jury. A hung jury is not a not-guilty, but in many cases will elicit a favorable outcome eventually.
In the other jurisdictions that permit bench trials, only between 5 and 30 percent of defendants choose bench trials. While there is some evidence to suggest that in those cases, judges are more defense-friendly, that may be because defendants are putting judge-friendly cases in front of judges.
Future Developments in NC
The constitutional amendment will probably save little money. A far more effective change in North Carolina criminal procedure would be to create jury trials in District Court. This would first require that District Court be converted into a court of record. That could be done through recording, absent a trial, and with a stenographer in trial settings.
Second, District Court could have six-person trials that would obviate the need for a trial de novo. That would create a more efficient system for the disposition of cases.
Third, a Speedy Trial statute is absolutely important, because it creates an efficient system. While District Attorneys long ago argued to remove the state’s Speedy Trial state, the problem has been that District Attorneys Offices have not been forced to prioritize resources. By creating an effective Speedy Trial statute, you’d effectively be requiring DAs to decide which cases they truly wanted to prosecute at trial, and which could be resolved by a reasonable plea.
The hold-up in the court system is not the defense lawyer, who is happy to take a reasonable offer to his client in most cases where the disagreement is about punishment and not guilt-innocence.
The hold-up is that District Attorneys Offices do not have any significant limits on how quickly they must dispose of cases, so cases languish.