This story was originally published Oct. 16 in the News & Observer
People charged with serious crimes would be able to ask a judge rather than a jury to determine their guilt or innocence, under a proposed state constitutional amendment that voters will decide.
Currently, anyone charged with a felony has the right to a jury trial. North Carolina is the only state that doesn’t allow criminal defendants to waive that right and ask a judge to hear their case.
A judge would have to agree to hear the case under the North Carolina proposal. Any case that could result in the death penalty would still have to be heard by a jury.
Misdemeanor cases are heard by District Court judges without juries. Those cases can be appealed to Superior Court and heard by juries.
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Sometimes defendants calculate that it would be to their advantage to have a judge rather than a jury because the charges involve highly technical evidence or because the nature of the crime is so inflammatory, such as a sex offense, and the judge might be less swayed by emotion.
It is also thought that the change would make the courts more efficient and save money, although a report by the UNC School of Government in August found that only between 5 percent and 30 percent of defendants who go to trial choose a judge over a jury in other states.
Arguments against what are known as “bench trials” include that it gives judges too much power and increases the risk that they might favor some defendants based on who their attorneys are, or that it will encourage attorneys to shop for favorable judges, the UNC study found. There is also a concern that some people charged with crimes might be more likely to be pressured by judges or prosecutors into seeking bench trials.
While North Carolina is the only state without the bench-trial option, the practice varies elsewhere. Some states require the prosecutor to consent; some require the judge’s consent; and others require both. North Carolina’s proposal would require only judges to agree.
The measure is expected to pass. Although some defense attorneys have spoken out against it, neither the state’s trial lawyers organization nor the N.C. Bar Association has taken a stance, and it was overwhelmingly approved in the legislature.
The General Assembly passed Senate Bill 399 in June with only one member, Rep. Michael Speciale, a Republican from New Bern, voting against it. If a majority of voters approve the proposed amendment, then it will become law.
Since the current state constitution took effect in 1971, 46 amendments have been proposed; 37 of which were adopted, according to UNC. (Eight were rejected, and one was repealed before going to a popular vote.) The last amendment was to ban same-sex marriages in 2012.