North Carolina has joined the other 49 states in providing criminal defendants the choice to a trial by judge or a trial by jury.
Prior to the midterm elections, North Carolina was the only state that did not allow felony criminal defendants to choose between a trial by judge—known as a bench trial—and a trial by jury. Under the previous laws, if the attorneys were unable to reach a plea agreement, a jury trial was mandatory.
This week, however, voters approved a new constitutional amendment by a 54 to 43 percent vote, allowing defendants to choose the type of trial—except in death penalty cases where a jury trial is still required.
North Carolina’s legal community is split on whether or not this amendment is a step in the right direction. Some lawyers argue that more choice adds flexibility to the defendant’s legal strategy, but others argue it opens the door to “judge shopping” and coercion from prosecutors.
“The rule was originally a part of several of the new states’ constitutions, and it reflected a real mistrust of English authority and the concern that people would be coerced into giving up their hard-won right to a jury trial,” said Burley Mitchell, former Chief Justice of the North Carolina Supreme Court. “To be completely honest, I think no one ever thought it was important enough to change.”
Strategic choice or vulnerability?
Some defense attorneys, think it is important for defendants to have this option. Kerry Sutton, a defense attorney at Sutton & Lindsay PLLC, argued that choosing a bench trial can be a strategic choice, especially in high-profile or emotionally charged cases.
“The judge is not going to look at my client’s tattoos or obvious lack of resources and hold it against them,” Sutton said. “Even if unintentionally, jurors are human, so they might do that.”
Donald Beskind, professor of the practice of law at Duke School of Law, noted that the right to a jury trial is not much different from any other right that criminal defendants are allowed to waive.
“We generally let people who have rights raise them,” Beskind said. For example, if you have a right to a lawyer you can say I don’t want one. If you have a right to a speedy trial, you can say I don’t care how long it takes.”
The amendment also has the potential to improve the efficiency of the court system, said Jeffrey Welty, associate professor of public law and government at the University of North Carolina at Chapel Hill School of Government, noting that that the courts in the state have been underfunded for years.
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"From the Court’s perspective, there’s a possibility of faster trials, better management of the docket, and less expense," said Welty, Law and Graduate School '99.
As the close vote suggests, not everyone in the legal field supports this amendment. Defense attorney Daniel Meier, founder of Meier Law Group PLLC, opposes the measure. The amendment could allow prosecutors to coerce defendants by promising to lower the charges if the defendant waives their right to a jury trial, or by making them wait longer in jail for a jury trial, he said.
“You’re taking away a safeguard that the jury provides, and you’re pretending as if it’s in the defendants’ best interest, but it just doesn’t work that way,” Meier said.
Meier also noted that it might be disadvantageous to ask for a bench trial in the first place, arguing that judges can be just as biased as jurors, especially because North Carolina elects its judges.
“Do you really think an elected judge six weeks before an election can be really objective about the messier cases?” asked Meier, “Or is there a risk they’re going to be thinking about how if I rule in favor of this guy in an acquittal, it's going to come back to bite me in campaign ads?”
Meier added that judges are subject to the same emotional reactions as jurors.
“The judge is going to have the same reaction as the jury,” said Meier. “You’re putting a lot of trust in the judge to say that he can put it aside when twelve people couldn’t.”
Maintaining judicial fairness
Another condition of the new amendment is that prosecutors would have no say in the matter. The only agreement that has to be reached is between the defendant and the judge, while other states do require prosecutorial consent. This may lead some lawyers to participate in “judge shopping,” said Zachary Bolitho, assistant professor of law at Campbell Law School.
“You, as a defense attorney, are expected to zealously represent your client,” Bolitho said. “There is a fear out there that this will include trying to find the judge who will be most helpful to your case.”
Not everyone, however, agrees that these accusations are correct. The justice system will operate on the same playing field as it did prior to the amendment’s passing, Sutton said.
“I don’t know any judge, prosecutor, or defense attorney who is going to risk their career, their reputation, the right to do what they do what they do by manipulating the trial,” said Sutton. “I think it is offensive to judges and attorneys, and is disrespectful of the skills attorneys and judges have.”
Lastly, some argue that it is unfair to the victim or to society for the defendant to choose not to be judged by a jury of his peers, said Durham District Attorney Roger Echols.
“There may be a sentiment amongst some prosecutors that the state should have a right to a jury trial also,” said Echols, “and that giving the right to the defendant takes that right from the State.”
North Carolina legislators may take up the law in future legislative sessions, providing rules and procedures to facilitate the transition, Sutton said, She added that most lawyers doubt this amendment to create a large shift in the system.
“I don’t think its going to be a sweeping, everybody wants to do it kind of thing,” Sutton said.