The North Carolina Constitution historically mandated trial by jury in all criminal cases in superior court. See N.C. Const. Art. I, Section 24 (2014) (“No person shall be convicted of any crime but by the unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.”); State v. Hudson, 280 N.C. 74, 79 (1971) (“In this State, the only exception to the rule that ‘nothing can be a conviction but the verdict of a jury’ . . . is the constitutional authority granted the General Assembly to provide for the Initial trial of misdemeanors in inferior courts without a jury, with trial De novo by a jury upon appeal. . . . It is equally rudimentary that a trial by jury in a criminal action cannot be waived by the accused in the Superior Court as long as his plea remains ‘not guilty.’”); State v. Bunch, 196 N.C. App. 438, 440 (2009), aff’d, 363 N.C. 841 (2010) (“Unlike the right to a jury trial established by the Sixth Amendment of the U.S. Constitution, the right to a jury trial pursuant to Article I, Section 24, cannot be waived.”); see also State v. Holt, 90 N.C. 749, 750–51 (1884) (“The constitution (Art. I, §13) provides that “no person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court. The legislature may, however, provide other means of trial for petty misdemeanors with the right of appeal.’”). Thus, a defendant who wished to proceed to trial in superior court had to do so before a jury. There was no option for a criminal trial in superior court in which the judge served as the finder of fact – a procedure known as a bench trial. The state constitution was, however, amended effective December 1, 2014 (for criminal offenses arraigned in superior court on or after that date) to allow a defendant in a noncapital case to waive the right to a jury trial with the consent of the trial judge. S.L. 2013-300.
As a result, Article I, Section 24 of the North Carolina Constitution currently provides:
No person shall be convicted of any crime but by the unanimous verdict of a jury in open court, except that a person accused of any criminal offense for which the State is not seeking a sentence of death in superior court may, in writing or on the record in the court and with the consent of the trial judge, waive jury trial, subject to procedures prescribed by the General Assembly. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.
G.S. 15A-1201 prescribes the procedures for waiving jury trial in superior court in favor of a bench trial. G.S. 15A-1201(b) provides that when a defendant — with the consent of the trial judge — waives the right to trial by jury, the whole matter of law and fact “shall be heard and judgment given by the court.” Those determinations include aggravating factors in impaired driving cases under G.S. 20-179 and aggravating factors in structured sentencing cases under G.S. 15A-1340.16.
So how is it done?
