The defendant’s right to trial by jury

Article III, Section 2, Clause 3 of the Constitution of the United States states:

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.

The Sixth Amendment to the Constitution of the United States provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . .

The Sixth Amendment was made applicable to the various states through the Fourteenth Amendment to the Constitution of the United States. The Connecticut Constitution, in Article I, Section 8 states:

In all criminal prosecutions, the accused shall have a right … in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury.

This is further codified in Connecticut law in both the practice book and the general statutes. C.G.S. 54-82b provides:

(a) The party accused in a criminal action in the Superior Court may demand a trial by jury of issues which are triable of right by a jury. […]

(b) In criminal proceedings the judge shall advise the accused of his right to trial by jury at the time he is put to plea and, if the accused does not then claim a jury, his right thereto shall be deemed waived, but if a judge acting on motion made by the accused within ten days after judgment finds that such waiver was made when the accused was not fully cognizant of his rights or when, in the opinion of the judge, the proper administration of justice requires it, the judge shall vacate the judgment and cause the proceeding to be set for jury trial.

Practice Book Section 42-1 provides:

The defendant in a criminal action may demand a trial by jury of issues which are triable of right by jury. If at the time the defendant is put to plea, he or she elects a trial by the court, the judicial authority shall advise the defendant  of his or her right to a trial by jury and that a failure to elect a jury trial at that time may constitute a waiver of that right. If the defendant does not then elect a jury trial, the defendant’s right thereto may be deemed to have been  waived.

The reason I mention all of this is that the other day, I was reading Mark Bennett’s series of interesting posts on jury selection in Texas. He was in the courtroom, not as a participant in the process, and reported the entire voir dire conducted by the prosecutor and pro-se defendant. In his final post, I noted this (which is Mark’s narration of the pro-se defendant speaking to the venirepersons):

AP [prosecutor] is new here, and I had agreed to have case before the judge (objection overruled). I was comfortable with the court system. The court called me a week later . . . (objection sustained). (State refused to waive jury? WTF, AP?)

That got me thinking. As evidenced by the Constitutional provisions listed above, I’ve always believed that the right to trial by jury is the defendant’s and defendant’s alone. Was I mistaken? So I tried to locate the relevant jury waiver provision in Texas’ criminal code. This is what I found:

Art. 1.13. WAIVER OF TRIAL BY JURY.  (a) The defendant in a criminal prosecution for any offense other than a capital felony case in which the State notifies the court and the defendant that it will seek the death penalty shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea.

(b) In a capital felony case in which the attorney representing the State notifies the court and the defendant that it will not seek the death penalty, the defendant may waive the right to trial by jury but only if the attorney representing the State, in writing and in open court, consents to the waiver.

That’s certainly a little strange. What confounds the matter further is the very next provision:

Art. 1.14. WAIVER OF RIGHTS.  (a) The defendant in a criminal prosecution for any offense may waive any rights secured him by law except that a defendant in a capital felony case may waive the right of trial by jury only in the manner permitted by Article 1.13(b) of this code.

But what of Article 1.13(a), which lays out the procedure for waiving a jury in a non-capital case? All the language I could find in constitutional jurisprudence assigned the right to a trial by jury to the defendant only. Take, for example, Patton v. United States, a case in which the defense and prosecution agreed to have the defendant tried by 11 instead of 12, after one juror fell sick. Justice Sutherland, for the majority, wrote:

We come, then, to the crucial inquiry: Is the effect of the constitutional provisions in respect of trial by jury to establish a tribunal as a part of the frame of government, or only to guaranty to the accused the right to such a trial? If the former, the question certified by the lower court must, without more, be answered in the negative.

In the light of the foregoing it is reasonable to conclude that the framers of the Constitution simply were intent upon preserving the right of trial by jury primarily for the protection of the accused. If not, and their intention went beyond this and included the purpose of establishing the jury for the trial of crimes as an integral and inseparable part of the court, instead of one of its instrumentalities, it is strange that nothing to that effect appears in contemporaneous literature or in any of the debates or innumerable discussions of the time. This is all the more remarkable when we recall the minute scrutiny to which every provision of the proposed Constitution was subjected. The reasonable inference is that the concern of the framers of the Constitution was to make clear that the right of trial by jury should remain inviolable, to which end no language was deemed too imperative. That this was the purpose of the Third Article is rendered highly probable by a consideration of the form of expression used in the Sixth Amendment.

The Court then concludes:

Upon this view of the constitutional provisions we conclude that Article III, Section 2, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so, is to convert a privilege into an imperative requirement.

Lending further support to the argument that the right is the defendant’s alone is the court’s discussion of the ability of the defendant to waive any damn right he pleases:

A defendant is supposed to understand his rights, and may be aided, if he so desires, by counsel to advise him. There are many legal provisions for his security and benefit which he may dispense with absolutely, as, for instance, his right to plead guilty and submit to sentence without any trial whatsoever.

So how does one square this core Constitutional right, which by all accounts, seems to be confer the benefit solely on the defendant along with the ability to waive this right if he so chooses, with what appears to be a prohibition in Texas on the waiver of this right without the permission of the State? Have I misread Texas’ statute? Perhaps Mark can chime in here and clarify things. Do other states have a similar requirement?

[Note: I know that caselaw establishes there is no fundamental right to trial by jury where the punishment does not exceed six months and yes, death is different and in capital cases, the consent of all parties is required to waive a jury.]

[Note 2: If nothing else, the Patton case and State v. Gannon – a 1902 Connecticut case  – make for fascinating reading. They both explore the deep and rich history of the Constitution and their underpinnings of the right to a jury trial and the process by which that right came to be recognized.]

17 thoughts on “The defendant’s right to trial by jury

  1. Mark Bennett

    Had I not written a blog post about this?

    Of course the State doesn’t have the right to a jury trial—the state has no rights with respect to the people.

    Nor does the defendant have a constitutional right to plead guilty or to a bench trial.

    But the State, whether Texas or your state of Little Fenwick, has the power to force a defendant to do anything that doesn’t violate the defendant’s constitutional rights. Including face trial before a jury.

    1. Jeff Gamso

      Thus, Federal Rule of Criminal Procedure 23(a)

      If the defendant is entitled to a jury trial, the trial must be by jury unless:
      (1) the defendant waives a jury trial in writing;
      (2) the government consents; and
      (3) the court approves.

    2. Gideon Post author

      Did you write a post about this? Have we come full circle from some post written when everyone started blogging 4 years ago? Possibly. My memory stinks.

      I’m not sure how the state can prevent the defendant from waiving a right that belongs only to the defendant.

      The “defendant doesn’t have a Constitutional right to plead guilty” analogy doesn’t follow here. You can’t prevent the defendant from exercising a right that doesn’t exist.

      The right to a trial by jury doesn’t belong to the defendant, then, if the defendant can’t choose to waive that right.

      1. Mark Bennett

        Surprisingly (because lawyers in Texas often refer, mistakenly, to the State’s “right” to a jury trial, and I’ve written the equivalent of several blog posts in emails to other lawyers on the subject), I seem not to have blogged about this. At least, I couldn’t find the post, so if I wrote it I forgive your failure to find it.

        “No right to plead guilty” wasn’t an analogy. It was an example of a limit on a defendant’s right to waive a jury. But if you want it to be an analogy, you might say, “The right to plead not guilty doesn’t belong to the defendant, then, if the defendant can’t choose to waive that right.”

        Try this: Recast it for a second; say it’s a civil case, and the defendant has the right to a jury trial. If the plaintiff also has the right to a jury trial, does the defendant somehow no longer have the right?

        No, of course not. Your premise—that only waivable rights are rights—is false.

        1. Gideon Post author

          But in most civil cases, there’s no expressed “right” to a trial by jury for either party exclusively. There either is a right to trial by jury for both or none.

          Additionally – and this is where we in CT may be saved from the wretched shadow of Singer – is that statutes provide for a procedure for the waiver of a right to trial by jury. In CT, there’s no requirement that the State agree to a waiver of the right to trial by jury and in civil cases, either party may seek to waive the jury trial. (Yes, not exactly in response to your comment, but in response to the general topic.)

  2. brian tannebaum

    I’ve been interested in this issue. We have the same thing in Florida. The state must consent to the waiver, and if a judge certifies that the defendant, upon conviction, will not be incarcerated, and will receive a “withhold of adjudication” (which is unique to Florida and 3 other states) then there is no right to a jury.

    The Sixth Amendment says that in all criminal prosecutions….the defendant has the right to assistance of counsel (as you know Gideon), but that right is restricted, at least in Florida, if the defendant is facing less than 6 months in jail, or the state announces they are not seeking jail.

    So these “defendant’s rights” are truncated by statute, therefore removing the obligation of the government to confer these rights on the defendants without exception.

    1. Gideon Post author

      There’s a difference between the caselaw on appointment of counsel and the right to trial by jury. In the case of the former, I think law is clear that if jail time attaches, you get counsel.

      In the case of the latter, I think Schick makes the distinction between petty offenses and the rest.

  3. brian tannebaum

    To clarify, even on a “less than 6 months” offense, if the state, in Florida, announces they are “seeking jail,” the defendant is entitled to appointment of counsel, if indigent.

  4. Lee Stonum

    For what it is worth, in California the State must agree to a bench trial, however the defendant does have an absolute right to enter a guilty plea at any point, so long as he can knowingly and voluntarily waive all rights necessary (including an acknowledgement that he may be sentenced to the aggravated term, maxed out).

  5. C.D. Bellamy

    “As a matter of Texas constitutional law, an accused has an absolute right to trial by jury…but neither a historical nor express right to have a felony accusation tried by the court, sitting without a jury can be found.” State ex. rel. Turner v. McDonald, 676 S.W.2d 371, 373-74 (Tex. Crim. App. 1984). Ultimately holding, article 1.13 is constitutional and the trial court had a ministerial duty to conduct a jury trial when the State refused to consent to the jury trial waiver. The case was most recently cited February of this year in memorandum opinion.

    I knew Texas law required consent for change in sentencing election but this is bizarre unless viewed (and applied) as a further protection of the criminal defendant. Legislative intent?

  6. Townsend Myers

    I’m glad you guys are debating/discussing this here. I practice in Louisiana where the defendant alone can decide judge or jury (except in a capital case). There has been a bill introduced in the legislature this session to try to add language requiring agreement from the prosecutor (the bill actually calls for a vote on a constitutional amendment, which is required to change this law). Obviously, the criminal defense bar is strongly opposed, and I have been lobbying my local rep (a former DA, ironically) to oppose it. So far he has. Thanks for the information. I may use some of it, or link to this post, in a blog I am considering writing on our situation here. Thanks again.

  7. Greg Jones

    In Michigan, until, I think, sometime in the 1920’s, all felony trials were trials by jury. There was no provision for waiver. Now, the defendant has an absolute right to trial by jury (under the state constitution, in every criminal case, no matter how small the possible penalty). However, by statute or court rule, the prosecutor and the judge must also waive trial by jury. In other words, they too, have a right (though of a lower dignity) to a trial by jury. The United States Supreme Court, sometime in the 1960’s I believe, upheld a similar provision of a Federal Rule of Criminal Procedure, giving the government a right to a trial by jury.

    1. Mark Bennett

      Errrr. No.

      The government has the power to force a jury trial; it doesn’t have any rights in relation to the people.

      Why does it matter? Because (among other reasons) if you start dignifying the Crown’s powers by calling them rights, you cheapen the people’s rights.

      1. Gideon Post author

        Crown’s Powers vs. people’s rights. I like that. I’m going to try and use it one of these days.

        I usually capitalize the S in State and don’t do the same to the d in defendant when writing briefs.

  8. Paul Federico

    We have a unique situation here in California involving a federal white collar case where the Judge failed to question the 2 co-defendants in regards to waiving their rights to a jury trial and then proceeded with a bench trial. She found both defendants guilty. When the issue was later raised with the judge by a new attorney stepping in to represented 1 of the defendants, she dismissed it, even though the transcripts clearly show the break in protocol / procedure in that there was no questioning by the judge of the defendants about waiving their rights nor was a waiver agreement form signed. New attorneys shocked by Judge’s response. This is already a widely published case. Expecting that this will be one for the books.


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