223.1Right to Jury Trial, Waiver
- A defendant has a right to a "trial by a jury," which means a unanimous verdict of 12 jurors for all felonies and misdemeanors in superior court.
- The right to trial by jury encompasses any ‘elements’ or ‘aggravating factors’ that would subject the defendant to a greater maximum possible punishment, with limited exceptions (e.g., past probation violations, juvenile adjudications).
- This right does not apply to the judge’s determination of criminal history points for sentencing purposes.
- Because of a state constitutional amendment, defendants in North Carolina may now waive their right to a jury trial.
Right to a Jury Trial
A defendant’s right to a jury trial is guaranteed by the Sixth Amendment to the United States Constitution, as well as Article I, § 24 of the North Carolina Constitution and statutory law found in G.S. 15A-1201. In many respects, the rights guaranteed under state law are broader than the minimum requirements set by federal law. For example, federal law only guarantees a right to jury trial for “serious offenses” (generally meaning a possible sentence of more than 6 months), the jury may be composed of as few as six jurors, and the verdict does not have to be unanimous if a jury of twelve is used. See Blanton v. City of North Las Vegas, 489 U.S. 538 (1989) (distinguishing serious from petty offenses based on imprisonment of six months or more); Apodaca v. Oregon, 406 U.S. 404 (1972) (less than unanimous verdict by jury of twelve not unconstitutional); Williams v. Florida, 399 U.S. 78 (1970) (“the 12-man panel is not a necessary ingredient of ‘trial by jury’”).
By contrast, North Carolina’s constitutional and statutory laws provide a right to a jury trial on all felonies in superior court as well as any misdemeanors appealed to or initiated in superior court, and state law always requires a full jury of twelve who must return a unanimous verdict. See N.C. Const. Art I, § 24; G.S. 15A-1201; G.S. 15A-1237(b); G.S. 15A-1431(b); State v. Poindexter, 353 N.C. 440 (2001) (jury must be composed of twelve members); State v. Baldwin, 330 N.C. 446 (1992) (verdict must be unanimous); State v. Hudson, 280 N.C. 74 (1971) (all twelve jurors must be unanimous).
Elements, Priors, and Aggravating Factors
If a defendant has a right to a jury trial, then he or she also has a right to a jury verdict on every element of that offense. See Jones v. United States, 526 U.S. 227 (1999); Apprendi v. New Jersey, 530 U.S. 466 (2000). An “element of the offense” is “any fact (other than a prior conviction) that increases the maximum penalty for a crime.” Jones, 526 U.S. at 243, n.6. This definition of element therefore applies not only to the traditionally understood elements of the offense itself, but also to factors such as the defendant’s course of conduct, motivation, selection of victim, etc., to the extent that those factors influence the particular offense for which the defendant will be convicted, or the statutory maximum punishment that may be imposed for the offense. See Blakely v. Washington, 542 U.S. 296 (2004) (fact that defendant acted with “deliberate cruelty” and was therefore subject to an additional 3 years imprisonment was an element that had to be found by jury).
Most “aggravating factors” must also be found by the jury, since by definition they subject the defendant to a higher statutory maximum punishment than he or she would otherwise face in the presumptive sentencing range. See G.S. 15A-1340.16(d); e.g., G.S. 20-179(a), (a1), (a2) (DWI statute amended post-Blakely, requiring prior notice and jury findings of aggravating factors). However, there are two important exceptions to this rule: first, the judge alone determines whether an aggravating factor exists based on a defendant’s prior, willful violation of probation or post-release supervision within the past 10 years; and second, the judge determines whether defendant has an aggravating factor for a prior juvenile adjudication which would have been an A-E felony if committed by an adult. See G.S. 15A-1340.16(d)(12a), (18a); State v. Boyce, 175 N.C. App. 663 (2007) (approving judicial finding of juvenile adjudication as aggravating factor); accord, State v. Anderson, 177 N.C. App. 54 (2006); State v. Taylor, 128 N.C. App. 394 (1998).
As noted in Jones above, a defendant’s criminal history and the resulting sentencing points assigned to any prior convictions are not a question for the jury. Instead, these convictions are submitted directly to the judge for a determination in accordance with the statutory requirements. See G.S. 15A-1340.14(a) (judge determines points assigned to each prior conviction); G.S. 15A-1340.14(e) (substantial similarity and applicability of out-of-state convictions); G.S. 15A-1340.14(b) (additional point assessed for repeat offender); G.S. 15A-1340.16(a5), (a6) (point for commission of offense while under supervision or on escape). The judge typically applies the statutes and performs the necessary calculations using the following forms: AOC-CR-600B (Prior Record Worksheet, offenses committed on/after Dec. 1, 2009); AOC-CR-600 (Worksheet continuation).
However, the scoring of prior convictions for sentencing purposes is distinct from cases in which a defendant’s prior conviction is an element of the underlying offense itself (e.g., possession of firearm by convicted felon, habitual felon, habitual DWI). The latter type of cases typically require either a finding of fact by the jury or a stipulation/plea by the defendant. For a more thorough discussion of prior convictions and status offenses, see the related entry on Alleging and Proving Prior Convictions at Trial – Court Procedure and Proof.
Waiver of Jury Trial
As a result of an amendment to the North Carolina constitution in 2014, defendants in North Carolina may now waive their right to a jury trial (except in capital murder cases) and have a bench trial instead. See G.S. 15A-1201; AOC-CR-405 (jury trial waiver form). A defendant who wishes to waive his right to a jury trial must do so by: (i) stipulation (at any time); (ii) written notice to the court (within 10 days after arraignment, service of calendar setting, or setting of trial date); or (iii) notice on the record in open court at the time of arraignment or calling of the calendar. G.S. 15A-1201(c). Failure to correctly follow the procedures laid out in G.S. 15A-1201 is a statutory violation, not a constitutional one, so the defendant must show prejudice to be entitled to relief on appeal. See State v. Hamer, 377 N.C. 502 (2021); see also State v. Rollinson, 383 N.C. 528 (2022) (trial court complied with statutory procedure though defense counsel responded in part on the defendant's behalf).
Upon receiving notice of a waiver, the state must schedule the matter for a hearing before the judge who will actually preside over the trial, at which time the judge decides whether to accept the waiver. See G.S. 15A-1201(d). Before accepting a waiver, the court must address the defendant personally to ensure the defendant fully understands and appreciates the consequences of the waiver. G.S. 15A-1201(d)(1). Additionally, the judge must determine whether the state objects to the waiver (and if so, why), and then consider arguments presented by the state and the defendant regarding the waiver. G.S. 15A-1201(d)(2). If the judge consents to allowing the waiver, then “the whole matter of law and fact,” including the existence of any aggravating factors under G.S. 20-179 or 15A-1340.16(a1), (a3), shall be heard and decided by the judge alone. G.S. 15A-1201(b).
The defendant may revoke his or her waiver one time as a matter of right within 10 business days of making the waiver, but in all other circumstances the waiver may be revoked only upon a finding by the judge that revoking it would not cause undue delay or hardship on the state. G.S. 15A-1201(e).
Finally, note that in the case of multiple co-defendants, a jury trial is required unless all defendants waive their right to trial by jury. G.S. 15A-1201(b).