CHARLOTTE, N.C. — When voters go to the polls in November, they'll decide whether North Carolina will join 49 other states in giving criminal defendants another option to a jury trial.
If approved, the proposed constitutional amendment would allow people charged with a felony to decide if they want a judge or a jury to hear their case.
"The issue hasn't attracted much attention but it would be a pretty major change in how the courts operate with a variety of possible effects, good and bad," said Jeff Welty, an associate professor of public law and government at the University of North Carolina.
UNC's School of Government studied the issue and released a report intended to provide background and context to voters.
Under current state law, a criminal defendant in a felony case must have a jury trial. They cannot waive or relinquish that right. But under the proposed amendment, defendants could waive their right to a jury trial. Such a waiver would require the consent of the trial judge and would not be allowed in a death penalty case.
The amendment would put North Carolina in line with 49 other states and the federal criminal justice system.
The proposal, sponsored by former state Sen. Pete Brunstetter, R-Forsyth, was seen as a way to increase efficiency in state courtrooms.
The amendment passed the state House, 104-1, and the Senate, 44-0.
Rep. Michael Speciale, R-New Bern, was the only lawmaker to oppose it, and is recommending that people vote no.
"What would be the purpose of this amendment?" he wrote on his website. "I can only reason that its purpose is intended to clear the backlog of cases. On whose backs will this come? The state would like to cut down on costs for providing legal defense to the indigent. Sadly, they will be the ones targeted because disposing of their cases by a Judge alone is generally quicker and cheaper than dragging out a jury trial."
Some criminal defense attorneys have expressed the same concerns.
The report addresses those issues.
It said one benefit of the proposal is that it could save time and money if a significant number of defendants picked a judge rather than a jury to decide their case. That's because so-called bench trials tend to be shorter and less expensive than jury trials.
Another advantage: Judges may be better suited than juries to decide certain types of cases, such as those involving highly technical evidence, or involving horrific crimes or unpopular defendants.
But the report also looked at arguments against the proposal, including that judges would have more power. That could create a risk that judges will favor certain defendants, especially those represented by influential lawyers, or that lawyers will try to secure the most favorable possible judge.
The other fear is that defendants could be pressured by busy prosecutors or even judges to waive their right to a jury trial.
The report looked at the experience in other jurisdictions that allow defendants to waive a jury trial. It found that most jurisdictions require a prosecutor's consent before a bench trial is held. Such a requirement allows prosecutors to block bench trials in cases in which they believe that an influential defense lawyers might seek preferential treatment for their clients.
They also found that only a small number — between 5 percent and 30 percent of felony defendants — chose a judge over a jury trial. If North Carolina were to have a similar experience, any cost savings or efficiency gains from the amendment would be modest, the report said.
And the report said that judges are more likely than juries to acquit defendants.
"Although the reasons for this are not completely clear, it contradicts the convention wisdom that defendants are better off with a jury than with a judge," the report said.
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