North Carolina Law Blog
Criminal charges in North Carolina are subject to special protections and rules of court. One of those is the right to a trial by jury. 
The right to a jury trial is deemed “fundamental” to a fair trial and true justice.
In fact, the right to a jury trial in the United States is specifically referenced in the Declaration of Independence. Complaints against the crown (the king) were numerous. One of the “repeated injuries” by King George III involved the consistent deprivation of the benefit of a jury trial.
We declared our independence from Great Britain because of things like unfair criminal trials without juries, illegal searches and seizures, corrupt enforcement of the laws, and the lack of protections requiring probable cause and reasonable suspicion.
The right to a trial by jury for criminal charges is recognized in the Constitution of the United States. The North Carolina Constitution also guarantees the right to a Trial by Jury in criminal prosecutions in Superior Court.
The US Constitution mandates that in criminal prosecutions, the defendant facing accusations of criminal wrongdoing has the right to a jury trial in the district or state where the criminal offense allegedly occurred.
The North Carolina constitution protects fundamental rights, setting forth that the accused may not be convicted of a criminal offense without the assurance of an impartial jury – David Courie, Criminal Defense Lawyer Fayetteville NC
Can I be forced to waive my right to a trial by jury?
No judge, prosecutor, or even criminal defense lawyer can force you to waive your right to a trial by jury. It is your decision whether to waive your right to a jury. It’s also ultimately the defendant’s decision to enter a plea of guilty or not guilty.
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In the past, people facing accusations of criminal charges in North Carolina (felony or misdemeanor) could not waive the right to a jury trial. That was true even if the defendant preferred what is commonly referred to by defense lawyers as a bench trial.
It’s important to understand that in District Court proceedings in North Carolina, a District Court judge rules on issues of law and also serves the role of Finder of Fact.
Because of the constitutionally protected right to trial by jury, the accused may appeal from District Court to Superior Court. As long as the person facing criminal charges enters a plea of not guilty in Superior Court, a jury trial has traditionally been required.
That changed with the passage of a constitutional amendment to the North Carolina Constitution in 2014 authorizing the defendant to waive their right to a jury trial.
That may be done in all Superior Court criminal matters except those deemed capital offenses. A capital offense in North Carolina is one subject to the death penalty.
As such, as to capital offenses in North Carolina, the accused still cannot waive the right to a jury trial.
Sample Waiver of Jury Trial Form
The NC Criminal Laws set forth protocols and procedures to waive your right to a jury trial if you so desire.
Defendants who are facing criminal charges in Superior Court, if choosing to waive their right to a jury trial, may do so after being apprised of their legal rights. They must fully understand what they are doing.
It must be a voluntary decision and cannot be compelled.
Ordinarily, that takes place in open court and on the record. Per the statute, that may also be done in writing.
Prior to proceeding without a jury, the Superior Court trial judge must make a formal inquiry into the matter and specifically review and rule on whether the defendant’s alleged decision to waive a jury trial is done so on a voluntary basis after he or she has been fully apprised of their legal rights and options.
Therefore, the Superior Court judge must personally address the defendant and confirm she or he fully appreciates what they are doing and understands the possible consequences of a decision to waive a jury trial.
The judge must also determine whether or not the prosecutor, the person representing the State of North Carolina (most often an Assistant District Attorney), consents or objects to the proposed waiver of a trial by jury.
In the event the State objects to waiving a jury trial, the Court must make an inquiry as to the reasoning of the State.
Determining a proper waiver takes time and is necessarily a detailed, thorough process. Determining whether or not someone wishes to waive their right to a jury trial must be clearly set forth on the record or written down, and cannot be implied.
If there is any question or uncertainty as to the Defendant’s decision to waive the right to a jury trial, the Court must proceed forward with a jury trial.
Should I waive my right to a trial by jury?
Waiver of any legal right, specifically those involved with the defense of criminal charges in North Carolina, demands careful review of the fact pattern of the case and any pertinent law to the criminal allegations. Juries of 12 and the jury system itself can be complicated at times.
There may be instances when the accused chooses to waive a jury trial due to the individual fact pattern of the case or specific legal issues at hand. It merits careful consideration of the law and facts.
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Jury verdicts can be difficult to predict and sometimes juries are inconsistent in their verdicts. Furthermore, as is the case with any human, juries may be subject to insert prejudices, emotions, and are subject to both explicit and implicit bias.
It’s very important to proceed with great caution, taking the time to confirm the defendant facing criminal allegations entirely and fully understands the legal rights and consequences of waiving such legal rights. That remains true irrespective of whether the criminal charges involve a serious felony or a misdemeanor or even DUI charges in Fayetteville NC and elsewhere throughout North Carolina.
What happens if there is an error in court?
Certain mistakes or errors by the court are those which take place during the trial may in some instances be corrected. The United States Supreme Court has established that a structural error is a type of defect that adversely affects the framework of a trial and specifically delineates that from an error in the trial process alone.
A structural error during a trial is a problem that affects the entire trial process from the very beginning to the very end.
The United States Supreme Court has previously recognized 6 examples of structural error in criminal trials, those being:
- A violation of the right for the accused to represent themselves at trial
- An incorrect or erroneous instruction to the jury regarding reasonable doubt
- A violation of the right to the 6th Amendment Public Trial guarantee
- The unlawful exclusion of grand jurors due to their race
- A judge who proceeds without impartiality
- Precluding entirely the accused’s right to legal counsel