Handling Jury Trial Waivers

As of December 1, 2014, North Carolina criminal defendants may waive their right to a jury trial in superior court and instead opt for a bench trial. This is because of the state constitutional amendment that voters approved this fall. (I wrote about the amendment here.) But how exactly is waiver supposed to work?

Background. The bill proposing the amendment is S.L. 2013-300. The bill contains a conditional amendment to G.S. 15A-1201 that became effective only because the amendment passed. New G.S. 15A-1201(b) reads as follows:

A defendant accused of any criminal offense for which the State is not seeking a sentence of death in superior court may, knowingly and voluntarily, in writing or on the record in the court and with the consent of the trial judge, waive the right to trial by jury. When a defendant waives the right to trial by jury under this section, the jury is dispensed with as provided by law, and the whole matter of law and fact shall be heard and judgment given by the court.

Effective date. The bill provides that the waiver provision takes effect December 1 and “applies to criminal cases arraigned in superior court on or after that date.” Unlike some statutory amendments, the date of the offense doesn’t matter – as long as the arraignment takes place on or after December 1, the option to waive is available to the defendant.

When must the defendant decide? I’ve been asked several times when the defendant must decide whether to waive a jury trial. The statute doesn’t say, but it may make sense to address this issue at arraignment, for two reasons. First, the effective date provision quoted above refers to cases arraigned on or after December 1, suggesting that arraignment may be an appropriate point to address waiver. Second, addressing waiver at arraignment may allow the issue to be decided far enough in advance of trial to adjust the number of prospective jurors summoned to court for a particular session. However, in some districts, arraignments may not be conducted, or at least not well in advance of trial, absent a request by the defendant under G.S. 15A-941. In such a case, it may be appropriate to address waiver at an administrative setting. Absent further guidance from the legislature or the appellate courts, it may be appropriate to amend a district’s criminal case docketing plan to specify the point at which waiver should be addressed.

What sort of colloquy is required for a waiver? The statute requires only that a waiver be knowing and voluntary. It doesn’t set out in detail what that requires. Judges may wish to model colloquies on those used for the waiver of a defendant’s right to counsel (discussed in this School of Government publication) and for the entry of a guilty plea (discussed in G.S. 15A-1022 and on the Transcript of Plea form, AOC-CR-300).

Is there a form? Of course! The AOC’s legal staff worked hard to get AOC-CR-405 up and running before December 1. Although the law requires only that any waiver be “in writing or on the record,” practical considerations suggest that a written waiver will normally be the better course. For example, if one judge accepts a waiver but another conducts the trial, the second judge may wish to verify the existence of a valid waiver, a process that is simpler if the waiver has been done in writing.

What is the scope of the waiver? When a defendant waives his or her right to a jury trial, does the waiver extend to any aggravating circumstances that are at issue? The statute provides that when a waiver is executed, “the whole matter of law and fact shall be heard and judgment given by the court,” which may suggest yes. But the structured sentencing statutes were not amended and G.S. 15A-1340.16(a1) still provides that “only a jury may determine if an aggravating factor is present in an offense.” Likewise, the DWI sentencing statute states that unless a defendant admits an aggravating factor, “only a jury may determine” if it is present. G.S. 20-179(a1) (2). The specific reference to juries in those provisions may suggest no. Or, perhaps the answer is that a defendant may choose whether the waiver extends to the consideration of aggravating circumstances. Absent clear legal support for one answer or another, parties and judges may wish to make a clear record about what is intended in each case in which a waiver takes place. The AOC form doesn’t take a position on whether a waiver includes aggravating circumstances, though there are some blanks on the form that could be used to indicate the parties’ understandings or desires regarding the scope of the waiver.

May the defendant withdraw a waiver? Again, the statute is silent on this issue. Approaches in other states appear to vary, with a few giving the defendant an absolute right to withdraw a waiver, but most giving the court discretion over withdrawal in light of the reason for the withdrawal, whether the withdrawal would disrupt planned proceedings, and other considerations. Christopher Tyner, our excellent research attorney, unearthed the following cases: State v. Sweeney, 869 A.2d 137 (Vt. 2005) (noting that the state’s criminal procedure rules are “silent on a defendant’s ability – or the showing necessary – to revoke a valid waiver” and holding, in harmony with what it described as the majority position on the issue, that “the decision to permit or deny the withdrawal of a jury trial waiver falls within the trial court’s discretion”; the court further held that “a court should permit a defendant to withdraw a valid jury trial waiver if the defendant shows an absence of adverse consequences to others and demonstrates that the withdrawal is requested in good faith”); Marquez v. State, 921 S.W.2d 217 (Tex. Crim. App. 1996) (noting that approaches to the issue are “diverse” in other jurisdictions with a minority affording an absolute right to withdrawal and a majority permitting waiver in the sound discretion of the trial court, the court concluded that withdrawal of a valid waiver is “addressed to the discretion of the trial court” and that the trial court should permit withdrawal so long as the defendant could demonstrated that the withdrawal “is in good faith and there are no adverse consequences”); United States v. Holmen, 586 F.2d 322 (4th Cir. 1978) (ruling that the trial court did not abuse its discretion by denying a motion to withdraw a valid jury trial waiver where the motion “was made on the eve of trial and after witnesses, who lived at distant places, had been subpoenaed and it would have been difficult, if not impossible, to have stopped them”); Com. v. Wright, 524 A.2d 970 (Pa. Super. Ct. 1987) (discussing Pennsylvania’s statutory absolute right to withdraw a waiver prior to commencement of trial and right to withdrawal after commencement of trial subject to the trial court’s discretion); State v. Kaba, 349 N.W.2d 627 (Neb. 1984) (“Once a trial by jury is voluntarily waived, which the defendant concedes, the defendant has no absolute right to withdraw or revoke his waiver and demand a jury trial. Whether one accused of a crime who has previously waived his right to trial by jury will be permitted to withdraw the waiver is within the discretion of the trial court.”); Woodson v. State, 501 N.E.2d 409 (Ind. 1986) (“Once appellant had effectively waived his right to trial by jury, the withdrawal of the waiver rested within the sound discretion of the trial court.”); Thomas v. Com., 238 S.E.2d 834 (Va. 1977) (ruling that the trial court abused its discretion by denying a motion to withdraw a jury trial waiver where the motion was made eleven days before trial and there was no evidence on the record that the motion for withdrawal was made in bad faith or that withdrawal would unduly delay the trial).

Does a waiver remain effective after a mistrial or a successful appeal? There’s not much law on these issues, and I don’t claim that my research was comprehensive, but there’s at least some authority for the idea that the answers are yes and no, respectively. United States v. Mortensen, 860 F.2d 948 (9th Cir. 1988) (holding that “consent to trial before a magistrate is not automatically cancelled by a mistrial but continues in force until it is revoked or withdrawn in a timely fashion”; the court further explained its understanding of the rule that “so long as the jurisdiction of the trial court is not broken by the taking of an appeal, the consent [to be tried without a jury] continues through subsequent proceedings”); United States v. Groth, 682 F.2d 578, 580 (6th Cir. 1982) (“[W]aiver of a jury trial does not bar a demand for a jury on retrial of the same case unless the original waiver explicitly covers this contingency.”).

Can the same judge who hears pretrial motions preside over the trial? Suppose that a judge hears a motion to suppress a defendant’s confession. The judge concludes that the confession was voluntary, but was obtained in violation of Miranda and is inadmissible at trial. May the judge preside over the trial? Or is he or she tainted by the evidence presented at the suppression hearing? Normally, I don’t think there’s any prohibition on the same judge hearing the motion and the trial. District court judges do that all the time on the theory that they are able to ignore inadmissible evidence. A few cases that I quickly found in other jurisdictions suggest that there is no categorical rule against it. Upshur v. United States, 716 A.2d 981 (D.C. Ct. App. 1998) (“We . . . reject [the defendant’s] argument . . . that the bench trial before the same judge who heard the suppression motion denied him the right to an impartial judge.”); State v. Cobb, 743 A.2d 1 (Ct. 1999) (noting that even when a trial is to be a bench trial, pretrial motions, including motions to suppress, normally should be assigned to the trial judge). But there may be cases in which the pretrial motions contain so much prejudicial, inadmissible evidence that it is appropriate to have a different judge hear the trial.

What if one codefendant wants to waive and one doesn’t? If two defendants’ cases are joined for trial, and one wants to waive a jury trial while the other doesn’t, what should be done? Once again, the statute doesn’t say. I can think of three possibilities: (1) the judge could reject the waiver, which the court has the power to do under the statute, and conduct a jury trial for both defendants; (2) the cases could be severed from one another to allow two separate trials; or (3) the trial could proceed against both defendants, with different decision-makers for each defendant. See, e.g., People v. Lesley, 128 A.D.2d 644 (App. Div. N.Y. 1987) (“The defendant was jointly tried with two codefendants . . . . The defendant and one of his codefendants waived a trial by jury and were tried by the court while a jury decided the fate of the second codefendant.”). As an aside, some jurisdictions have rules or statutes addressing this situation. See, e.g., Mass. Gen. L. Ch. 263 § 6 (“If the court consents to the waiver, [the defendant] shall be tried by the court instead of by a jury, but not, however, unless all the defendants, if there are two or more charged with related offenses . . . shall have exercised such election”); Wash. Sup. Ct. Crim. R. 6.1(b) (trial by court allowed only if all defendants waive jury trial).

Who will be the first to waive? I will send a highly coveted item of School of Government promotional merchandise – such as a portfolio, baseball cap, or USB drive bearing the School’s logo – to the first person to post a comment reporting accurately on a case in which a waiver has taken place. Great for your own use or for holiday giving!