In November, North Carolina voters will decide whether to amend the state constitution to fundamentally change how criminal trials may be conducted in this state, but neither the media nor advocacy groups have paid much attention.
North Carolina is the only state that does not let a defendant – except in misdemeanor cases in district court – waive the right to a jury trial and choose to have guilt or innocence determined by a judge at what is called a “bench trial.” Defendants charged with felonies may plead guilty, but if they want a trial, they must be tried by a jury rather than a judge.
The proposed amendment would allow a defendant to waive the right to a jury trial, with a judge’s approval, except in capital cases.
There are advantages to the proposed amendment. Bench trials are shorter and less expensive than jury trials because there is no jury selection, no jury deliberation and no need to feed and to pay jurors. Based on data from other jurisdictions, our best guess is that about 15 percent of felony defendants would choose bench trials, resulting in a modest financial savings.
But bench trials, in some cases, may yield more accurate results. For example, judges likely are more familiar with DNA and other forensic evidence than most jurors and so may be better able to determine whether such evidence in a particular case is strong or weak.
Furthermore, judges may be more dispassionate than jurors. Because they are used to dealing with cases involving serious, violent crimes, judges may be less emotionally influenced by the nature of the charges and better able to focus carefully on whether the defendant is culpable.
These advantages have been sufficient to persuade other states to allow defendants to waive the right to a jury trial. Most of our legislators appear to believe that allowing bench trials would be desirable because they agreed almost unanimously to put the proposed amendment to the voters.
However, voters should be aware that the amendment also carries risks. First, there is a risk that defendants, especially well-connected ones with prominent lawyers, will receive overly favorable treatment from judges. Many believe this happens now in impaired driving cases, which are often adjudicated in bench trials under the misdemeanor exception.
A recent study of federal trials found that while juries acquitted defendants 16 percent of the time, judges acquitted defendants 45 percent of the time.
There also is a risk that some defendants will be pressured to waive their right to a jury trial. Certainly there are many appellate cases in which defendants have claimed they were coerced into waiving their jury rights. Most of these claims fail, but not all. Data from the National Center for State Courts show that in some states, there are more bench trials than jury trials, which may support the idea that when bench trials are possible, institutional structures arise to encourage them.
Finally, when the judge is the ultimate arbiter of guilt or innocence, there is a strong incentive for lawyers on both sides to engage in “judge shopping.” Defendants may seek to have their cases heard by particularly acquittal-prone judges, while prosecutors may try to maneuver more cases before conviction-prone judges. Judge shopping happens now, because judges influence criminal cases in so many ways, but concentrating more power in the hands of the judge is likely to make the practice even more widespread.
One more issue arises from the specific wording of the proposed amendment, which requires the “consent of the trial judge” but not the prosecutor before a bench trial may take place. Most states require the consent of the prosecutor, which may guard against some of the risks noted above. For example, if a defendant is represented by an influential lawyer who is close with a particular judge, the prosecutor might object to a bench trial. The proposed amendment does allow a defendant’s waiver of a jury trial to be made “subject to procedures prescribed by the General Assembly,” so perhaps a requirement of prosecutor consent could be added later by the legislature.
Jeffrey B. Welty is an associate professor of Public Law and Government at the University of North Carolina at Chapel Hill. Komal K. Patel is a law student at the University of Virginia who served as a law clerk at the UNC School of Government this summer. Consistent with the school’s educational purpose, this is not meant to advocate for or against the proposed amendment.