Your right to a jury trial is so important that it’s guaranteed by the U.S. Constitution. It is established in the Bill of Rights, along with other important rights such as the freedom of religion and speech as well as the right to possess guns (bear arms).
Despite the importance of this right, just 2 % of cases go to trial. You read that correctly, the overwhelming majority of criminal cases DO NOT go to trial.
But it is often said, though, the right has might. In other words, the right to a jury trial carries strength even if it is not exercised. The right to a jury trial, if used appropriately, can be like a big stick or a gun at the hip. And smart attorneys keep their weapons close, in plain view.
You may have never thought about it this way but the right to a jury trial is YOUR right, and NOT the prosecutor’s, right? This is an important distinction. A prosecutor cannot force your case to jury trial…because it’s YOUR right, not theirs. This simple distinction levels the playing field for an individual facing a very unlevel playing field. Prosecutors have challenged this from time to time in an attempt to wrestle with one of the few points of leverage that a defendant possesses. Let’s take a look at a recent Court of Criminal Appeals decision that further establishes that there is no ABSOLUTE requirement to a jury trial.
In Pacas vs. The State of Texas, the central question posed by this case is: Does the Texas Constitution create an absolute requirement of jury trials in every criminal prosecution?
The Court of Appeals answered no, the Texas Constitution does not prohibit a defendant from waiving a jury trial in felony cases. The Court’s analysis of Art. I, §10 and §15, review of the history and context of the adoption of the Texas Constitution, and precedent from the Court of Criminal Appeals supports this conclusion. Read Opinion.
In these decisions, there is often a judge or two who disagree with the majority decision. In this case, Judge Goodman dissented. Here is a summary of Goodman’s dissent:
“As I have previously written, when construed according to its plain meaning and historical context, Article I, §10 imposes an absolute requirement that cannot be forfeited or waived. It requires that all prosecutions for Old Code felonies be tried by a jury—even if the defendant affirmatively seeks to enter a plea of guilty or otherwise waive his right to a trial by jury. I stand by my dissent in Farris, and its reasoning is dispositive here.” Read Opinion.
For those who pay attention to such things, it has always been said that the only thing that a criminal defendant cannot waive is his right to a jury trial—in a death penalty case. There has never been a suggestion that a defendant could not waive anything else. See also Tex. Code Crim. Proc. Art. 1.14(a).
So, this is certainly a novel argument. It has gaine\d some traction because the dissenting justice believes in the argument. The majority opinion does a remarkable job of going through the history of the right to a jury trial in Texas. Even though this a novel issue, and there is a dissenting opinion, you should not necessarily expect a review by the Court of Criminal Appeals. The high court has previously (and recently) refused to review this issue.
Why you hold the right to have a jury trial
In Texas, any person has the right to a jury trial in a criminal case. That means that no one can be denied the right to be tried by a jury of its impartial peers. The right comes from three provisions:
- The Sixth Amendment to the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed…” U.S. CONST. amend. VI.;
- Article I, section 10 of the Texas Constitution, titled “Rights of accused in criminal prosecutions,” which states that “In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.” TEX. CONST. art. I, § 10; and
- Article I, section 15, of the Texas Constitution titled “Right of trial by jury,” states: “The right of trial by jury shall remain inviolate“ and authorizes the Legislature to “pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.” TEX. CONST. art. I, § 15; see also TEX.CODE CRIM.PROC.art.1.13
The right to a jury trial is inviolate, which means no one can be denied said right, and any verdict issued by a Court that denies said right to a defendant is unconstitutional and therefore invalid.
The origins of such an important right come from tradition, first from 13th Century England, where a person could ask to be tried by one of his peers instead of being subject to torture, decision by battle, or other barbaric methods. In other words, it was created to enforce fairness. See, Singer v. United States, 380 U.S. 24, 27 (1965) (citing I Holdsworth, A History of English Law326 (7th ed. 1956)).
In that light, when Texas declared its independence from Mexico, the new Republic adopted in its Constitution the right to a trial by an impartial jury, in light of all the abuses the Texans have suffered from the State of Mexico. See, Repub. Tex. Const. of 1836, Sixth Declaration of Rights, reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822-1897, at 23 (Austin, Gammel Book Co. 1898).
It was by logical progression that when the Republic of Texas became a State of the Union, they extended that right to the Constitution of the State of Texas, and in harmony with the Constitution of the United States of America.
Waiving the Right to a Jury
Now, the right to a Jury trial can be waived. Depending on the type of case you may have, your attorney can recommend that you request that the Court allows you to waive your right to a Jury Trial. The reason could be that your acquittal could depend on a strict or technical application of the law to the alleged facts of the case. In that case, a Judge would be more suited to see such a trial, than a juror who does not possess technical knowledge of the law.
Notwithstanding the right to a jury trial can only be waived if the following requirements are complied with:
- The case is not a capital felony case in which the state notifies the court and the defendant that it will seek the death penalty;
- The waiver must be made in person by the defendant, in writing, in open court, and with the consent and approval of the court;
- The waiver must be consented and approved by the attorney representing the state in writing; and
- If the case is a felony, an attorney must be appointed to the defendant.
Such requirements come from the Texas Code of Criminal Procedure, Art. 1.13 in light of Texas Legislature’s power to regulate and to maintain the purity and efficiency of the right to a jury trial, as provided by Article I, section 15, of the Texas Constitution.
Challenges When Waiving Criminal Cases
Recently, there have been some challenges in Harris County about the waiver of a jury trial. In two cases, defendants have argued that the Texas Constitution mandates that a criminal case be tried by jury and does not allow the waiver of said right.
Notwithstanding, in both cases, the First Court of Appeals of Texas has rejected such an argument and has confirmed that the Texas Constitution allows for such a waiver. See, Pacas v. State, 01-18-01016-CR (Citation Pending); and Farris v. State, 581 S.W.3d 920, 924 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).
But even more, well-established precedent already exists, stating that the right to a jury trial can be waived by a defendant. The Court of Criminal Appeals decided a long time ago (1933), that the Constitution of Texas does permit the waiver of the right to trial by jury and the legislature to establish guidelines to waive the right to a jury trial. See, Dabney v. State, 124 Tex. Crim. 21, 60 S.W.2d 451, 451 (1933).
In conclusion, the Texas Constitution grants every person that confronts a criminal case in the State of Texas to have a trial by an impartial jury, and if such a right is denied to a person, any verdict issued on such a trial would be unconstitutional and therefore, void. However, like most rights, the right to a jury trial can be waived if the requirements established by law are complied with and the State gives its consent.
It is the defendant who has the right to request to the court whether he or she wants to have a trial by jury or waive such right. Such a decision should be taken after carefully consulting with an attorney after he makes a thorough analysis of the facts of your case. He can determine if all elements of your case and application of the law are better presented to a jury that is composed of laypersons, or a judge who has technical knowledge of the law.
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