Professor Jeff Welty put up a nice blog piece the other day that’s certainly worth a read. In it, he talks about a proposed constitutional amendment that’s up for a vote this November — and which you probably haven’t heard much about. He and his colleague, law clerk Komal K. Patel, have also prepared a very comprehensive and balanced report that not only explains the proposed amendment (and gives the arguments both for and against it), but provides a fascinating history of the constitutional amendment process itself in North Carolina. Read their entire informative report here.
Stealth Constitutional Amendment Could Bring Big Changes
This fall, North Carolina voters will decide whether to amend the state constitution. The proposed amendment would allow, for the first time, bench trials for felonies in superior court. Neither the media nor advocacy groups have paid much attention to the amendment, so almost no one seems to know that it is on the table. For that reason, I think of it as the stealth constitutional amendment. Despite the amendment’s low profile, allowing felony bench trials would be a major change.
The change could be for the better. For example, bench trials might save money, and some defendants — those with technical defenses, or those who are unpopular in the community — might prefer a judge to a jury. The 49 other states allow bench trials, so the amendment would bring us in line with the national norm.
But the change could also be for the worse. Once waiver is possible, defendants might be pressured to waive their right to a jury trial. Defendants with prominent and well-connected lawyers might get unfairly favorable treatment. Also, contrary to the majority rule in other states, the amendment doesn’t give the prosecution the right to insist on a jury trial if it believes that a bench trial would be inappropriate.
In an effort to draw some attention to the amendment and to provide some information about its possible benefits and costs, I worked with School of Government law clerk Komal Patel to prepare a report about it. The report is available here as a free PDF. In typical School of Government fashion, it doesn’t take a position on the amendment but it contains quite a bit of information about its potential impact and the practice in other jurisdictions. It’s written to be accessible to voters who aren’t very familiar with the criminal justice system, so please pass the link along to anyone who may be interested. As always, feedback and comments of all kinds are welcome.
Jeff Welty joined the faculty of University of North Carolina’s School of Government in 2008 as an Albert and Gladys Hall Coates Associate Professor of Public Law and Government. Prior to that, Professor Welty completed a federal judicial clerkship, spent eight years in private practice, and served as a Lecturing Fellow at Duke Law School. Professor Welty holds a bachelor’s degree from the University of California at Berkeley and a master’s degree in economics and a JD, with highest honors, from Duke University, where he was executive editor of the Duke Law Journal.