The Forgotten Amendment

Photo courtesy of The National Constitution Center

Photo courtesy of The National Constitution Center

By Colleen Sharp.

With an enormously expensive and influential Senate race in North Carolina this year, it would be easy for a little thing like changing the North Carolina constitution to be lost in the excitement. But every ballot in North Carolina presents the voters with a choice of whether or not to amend the state constitution. The proposed amendment would allow a defendant to waive his or her right to a trial by jury in non-death penalty case. After waiving the trial by jury, the defendant would be tried by a single judge in the North Carolina Superior Court system. The specifics of these procedures would be subject to further clarifications to be made by the General Assembly in the future.

The bill to put this amendment up for a referendum sailed through the General Assembly. Sponsored by Senator Peter S. Brunstetter from Forsyth and Yadkin counties, the bill was voted on unanimously in the Senate and with one dissenter (Michael Speciale, a Representative from the northeastern part of the state) in the House of Representatives. Newspapers seem to be uninterested in the amendment, aside from passively supporting it; both the News and Observer and the Winston-Salem Journal have officially endorsed it, but they use broad terms: for example, the Winston-Salem Journal’s declaration that the amendment “just makes sense” and is “a good idea” in its October 19 article. Few officials, including Rep. Speciale, Rep. Larry Pittman from Cabarrus County, who changed his mind after voting for the bill, and the District Attorney of Cabarrus County, have spoken publicly against the amendment. Political organizations, including political parties, have been silent on this issue. The lack of real civil discourse about this issue is disconcerting. It would be simple to vote in favor of an apparently rational amendment without considering the dire consequences this amendment would have on justice in North Carolina.

While 49 other states in America currently have similar provisions, North Carolina needs to stand out as a safeguard of justice when it comes to the right to a trial by jury. Juries are imperative in American governmental structures because they allow the ultimate authority–the people–to decide what is just. When the trial by jury is taken away, it distances the defendant from the community and allows a single judge enormous power over this person’s future. And there is simply too much room for error in a trial by a single judge, also known as a bench trial.

Although a key argument in favor of bench trials is that the judge is more likely to understand the law, juries are more competent than judges in applying the law in question because juries represent the people’s understanding of the law. In a 2012 study published in the Northwestern Law Review, it was found that jurors are able to understand the laws fairly well: 79.16 percent of all comments in 50 jury cases were legally correct. While this study does show that there is significant error in juror’s comments, most of these errors–16.04 percent of all comments–reflected misguided comprehension, and these cases often had longer deliberation and more time to resolve comprehension errors. While clear evidence on jury accuracy is difficult to obtain due to the questionable accuracy of any decision, this case does prove that juries are able to understand the law involved in their cases. North Carolinians ought to trust juries more than judges.

The outcomes of bench trials could easily be influenced by the relationship between the attorney and the judge. Although direct personal connections between lawyers and judges are unlikely to directly change the outcome of a case, other types of error in bench trials are much more likely. It is possible that the defendant’s counsel would be influenced by a judge’s reputation as being more or less lenient than juries. According to a study from the Washington University in St. Louis conducted by Andrew Leipold, judges are significantly more likely to acquit than juries, and this number indicates that either juries or judges are frequently wrong.

More room for error exists in the relationship between the defendant and his or her legal counsel than in the relationship between judges, and this error is much more troubling. In states where this right may be waived, many cases are appealed because the defendant claims that he or she was not completely aware of the consequences of waiving the right to a trial by jury. How can North Carolinians expect every defendant to make an informed choice, when information on waiving the right to a trial by jury is hard to find? Furthermore, if a defendant is assigned counsel, it is likely that the defendant will be advised to waive the jury trial due to pressure from the state-appointed attorney to reduce the attorney’s own excessive workload. The defendant may also be coerced into relinquishing his or her right by the threat of court fees, which must be paid even if the defendant is convicted and goes to jail. All of these factors may contribute to the defendant’s lack of full achievement of rights enabled by this constitutional amendment.

While proponents of this amendment may claim that the bench trial would increase the efficiency of the criminal justice system in North Carolina, efficiency should not be the main goal of the justice system. With a high incarceration rate in America, the judicial system should spare no expense to ensure that convicts are truly guilty, and only a jury can adequately prove the guilt or innocence of a defendant “beyond a reasonable doubt.” Others may argue that bench trials may be more just in cases in which the defendant is well known in the media, or in cases that require specific expertise. This argument may be convincing for a judge to take the place of a jury, but a jury can be taught to overcome its objections or to acquire knowledge for a case, and is already fully capable of handling these cases.

Because juries are an inseparable aspect of American political life and the due process required for each defendant, this constitutional amendment to allow defendants to choose a bench trial over a jury trial has the potential of causing enormous harm to the administration of justice in the state of North Carolina.

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