Adjunct Professor Don Vaughan (’79) quoted about felony criminal defendants ability to waive jury trials in article

Criminal defendants charged with all but the most serious felonies would be able to have a judge, rather than a jury of their peers, decide whether they are guilty or innocent if voters approve a state constitutional amendment on the November ballot.

The measure is a seemingly bland bit of policy on a ballot topped by a hotly contested U.S. Senate race, but it deals with one of the most fundamental rights guaranteed by the federal and state constitutions.

“If we’re depriving you of life, liberty or property, you can get a jury trial,” said Lori Kroll, a lawyer who served as chief of staff to former state Sen. Pete Brunstetter, R-Forsyth, when he sponsored the bill that sent the amendment to voters. Both Kroll and Brunstetter now work for Novant Health.

Voters on Nov. 4 will be asked whether they are for or against the following:

Constitutional amendment providing 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 court and with the consent of the trial judge, waive the person’s right to a trial by jury.

Kroll, a former military JAG officer, said defendants in military and federal courts have the option to ask for a bench trial. She was surprised it didn’t exist in North Carolina courts. According to a recent report by the UNC School of Government, 49 other states and the federal government allow criminal defendants to opt for bench trials.

Generally speaking, juries in criminal trials determine facts in a case, namely whether someone is innocent or guilty. Judges apply the law and often are charged with handing down sentences.

In North Carolina, criminal cases involving only misdemeanors, which are generally defined as less serious crimes, are first heard in District Court, where there are no juries, according to Thom Maher, director of the state Office of Indigent Defense Services, which oversees public defenders and private indigent defense attorneys across the state. Those defendants can appeal to Superior Court, where they would have a jury trial, he said.

Felonies, loosely defined as the most serious crimes, are heard in Superior Court. Currently, the state constitution does not allow for a bench trial cases heard by the Superior Court.

Voters will get to decide whether that will change for most criminal defendants. The only criminal cases where this amendment wouldn’t allow a bench trial are capital crimes where prosecutors are seeking the death penalty.

Even if this amendment were to pass, criminal defendants would still be able to demand a jury trial. Despite that, some defense attorneys worry their clients could be pressured to give up their jury trial rights.

“There’s a reason that it’s been in our constitution for a long time,” said Chris Fialko, a defense attorney in Charlotte. “The jury is the last barrier between our citizens and injustice.”

Tactical considerations will influence defendants’ choices

As drafted, the amendment would require a defendant to request a bench trial in writing or open court and a judge to approve the move.

“Those are two really good safeguards,” said Don Vaughan, a Greensboro lawyer and former state senator who is now an adjunct professor of state and local government at Wake Forest University.