North Carolina Criminal Defendant May Waive Jury Trial Amendment (2014)

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Criminal Defendant Waiver of Trial by Jury
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Type:Constitutional amendment
Constitution:North Carolina Constitution
Referred by:North Carolina State Legislature
Topic:Civil and criminal trials

The North Carolina Criminal Defendant May Waive Jury Trial Amendment was on the November 4, 2014 ballot in the state of North Carolina as a legislatively-referred constitutional amendment, where it was approved. The measure permitted criminal defendants who are not facing the death penalty to waive their right to trial by jury, with consent from the judge, and instead be tried by a judge in a North Carolina Superior Court.[1]

The amendment was sponsored in the North Carolina Legislature by State Senator Peter Brunstetter (R-31) as Senate Bill 399.[1]

Election results

North Carolina Criminal Defendant May Waive Jury Trial Amendment
Approveda Yes 1,408,119 53.07%

Election results via: North Carolina State Board of Elections

Text of measure

Ballot title

The official ballot text was as follows:[2]


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.[3]

Ballot summary

The NC Constitutional Amendments Publication Commission adopted the following summary for the amendment:[4]

The North Carolina Constitution currently states that a person accused of a crime and who is not pleading guilty to that charge cannot be convicted unless a jury decides the person is guilty.

The proposed Amendment to the Constitution would allow a person accused of a crime to choose to be tried by either a judge or a jury. Choosing not to have a jury trial is called waiving the right to a jury trial. If passed, the proposed amendment would require a person wanting to waive the right to a jury trial to say so in court or in writing. A judge would then have to agree to that request. If a person accused of a crime waives the right to a jury trial, a judge would decide whether the person is guilty.

Jury trials would still be required in all cases with a possibility of a death sentence. Nothing in this proposed amendment changes federal law regarding criminal trials.

If the majority of voters vote "FOR" for the Amendment, a person accused of a crime will be able to waive the right to a jury trial in cases as described above.

If the majority of voters do not vote "FOR" the Amendment, the law will not change and a person accused of a crime will not be able to waive the right to a jury trial.[3]

Constitutional changes

See also: Section 24 of Article I, North Carolina Constitution

The amendment altered Section 24 of Article I of the Constitution of North Carolina to read:[2]

Sec. 24. Right of jury trial in criminal cases.
No person shall be convicted of any crime but by the unanimous verdict of a jury in open court.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.[3]


2014 measures
Seal of North Carolina.png
November 4
Criminal Defendant May Waive Jury TrialApproveda

Interpretation of law

According to Jeffrey B. Welty, professor of public law and government at the UNC School of Government, and Komal K. Patel, law student at the University of Virginia, Section 24 of Article I of the North Carolina Constitution had been historically interpreted to mean "that a criminal defendant in a felony case who wants to have a trial must have a jury trial. He or she cannot waive the right to a jury trial and have a bench trial." Amendment VI of the United States Constitution also guarantees criminal defendants the right to a jury trial. In Patton v. United States (1930), however, the court ruled that the federal constitutional right may be waived by a defendant.[5]

Other states

Prior to the measure's passing, North Carolina was the only state that did not allow criminal defendants to waive their right to a jury trial. The 49 states allowing the waiver have different rules, nonetheless. Some require the prosecutor to consent before a bench trial will be allowed, some require the judge to consent and some require both. In Singer v. United States (1965), the United States Supreme Court ruled that requiring prosecutor or court consent before a jury trial can be waived is constitutional.[5]

Under North Carolina's amendment, "consent of the trial judge" is required but not consent of the prosecutor, in order for a criminal defendant to waive their right to a jury trial.[5]

Based on analysis of the proposed amendment and the rate of jury versus bench trials in states with similar laws, Welty and Patel estimated that between 5 and 30 percent of defendants who plead not guilty will choose bench trials.[5]


The measure was introduced into the legislature by Sen. Peter Brunstetter (R-31).[1]


The amendment received unanimous support in the North Carolina Senate and the support of all but one representative in the North Carolina House of Representatives.


  • Michael Rich, a law professor at Elon University, stated, "The theory is that judges are more able to put aside their emotions and deal with the facts of a case." Allegations of child pornography, for example, would "inflame" jurors to seek excessive punishment.[6]
  • Former Sen. Donald Vaughan (D-27) noted that the amendment would save the courts and defendants time and money. Juries tend to be time-consuming and expensive. He said, "The courts in North Carolina are jammed. In order to pick a jury on certain issues, it can take days."




The lone legislator to vote against the amendment was Rep. Michael Speciale (R-3).[7]


  • Guilford County Board of Commissioners[8]


James Payne, a criminal defense attorney specializing in white-collar and military justice criminal matters, called for a "no" vote. Some of his reasons included:

The proposed amendment, which was recently passed by the N.C. General Assembly without much fanfare, threatens the integrity of our criminal justice system. If voters pass it, felony defendants may give up one of the most fundamental of all constitutional protections – a jury of peers to decide their fate. As a defense attorney with more than 25 years experience in North Carolina courtrooms, I urge citizens to vote no to this amendment.

The American jury has long been a protection of the lives and liberties of her citizens. The jury system protects our individual freedom by prohibiting the government from taking us to prison unless it can prove to every single person on that jury that we have committed a crime. This jury of our peers must not only be unanimous in their judgment, but must agree "beyond a reasonable doubt," the highest legal burden in our judicial system. The fundamental protection of the jury system allows each us to go about our daily lives secure in the knowledge that, if faced with a criminal accusation, our liberty will ultimately be in the hands of our fellow citizens...

Proponents of the amendment point out that 49 states have similar provisions and that North Carolina should get with the times. That argument, however, is illogical. Just because others play with fire does not mean we should follow suit. Prosecutors also have reason to pause over this proposed amendment. Unlike many other states that require a prosecutor's consent, under the N.C. proposal, the prosecutor has no ability to oppose a waiver of jury trial...

The right to a jury trial is fundamental for a reason. That reason is our individual liberty. When we diminish the former, we undermine the latter. Let us not meddle with our freedom. [3]

—James Payne[9]

Other arguments against the amendment included:

  • Chris Fialko, a defense attorney based in Charlotte, expressed worry that the amendment would allow his clients to be pressured into giving up their jury trial rights. Fialko said, "There's a reason that it's been in our constitution for a long time. The jury is the last barrier between our citizens and injustice... In this day and age of growing police power, I'm just worried about citizens giving up their rights to a jury trial."[6]

Media editorial positions

See also: Endorsements of North Carolina ballot measures, 2014


  • The News & Observer said, "This is a change that will improve the state constitution, enhance the operation of the state’s courts and, in many cases, sharpen the knowledge, discernment and impartiality with which verdicts are rendered. Vote yes on the proposed amendment allowing nonjury felony trials."[10]
  • Winston-Salem Journal said, "This one just makes sense: A proposed constitutional amendment that would give defendants in many cases the right to waive a jury trial, which is now required for felony cases, and be tried by a judge (a “bench trial”). We think the amendment is a good idea."[11]

Path to the ballot

North Carolina Constitution
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See also: Amending the North Carolina Constitution

According to Section 4 of Article XIII of the North Carolina Constitution, a 60 percent vote in both legislative chambers was required in order to place the amendment on the ballot. SB 399 was approved by the North Carolina House of Representatives on June 27, 2013. The bill was approved by the North Carolina Senate on July 2, 2013.[1]

House vote

June 27, 2013 House vote

North Carolina SB 399 House Vote
Approveda Yes 104 99.05%

Senate vote

July 2, 2013 Senate vote

North Carolina SB 399 Senate Vote
Approveda Yes 44 100.00%

See also

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