12.17 - IX. Waiver Of Jury Trial

• Jurisdiction: New York

IX. WAIVER OF JURY TRIAL

First some constitutional history. Before 1937 a defendant charged with a felony was not permitted to waive a trial by jury.¹⁹³⁸ Change came with the adoption of New York Constitution article I, § 2:

A jury trial may be waived by the defendant in all criminal cases, except those in which the crime is punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of the judge or justice of a court having jurisdiction to try the offense. The legislature may enact laws, not inconsistent herewith, governing the form, content and manner and time of presentation of the instrument effectuating such waiver.

This section confers an absolute right to waive a jury, subject only to a defendant’s awareness of the consequences of the waiver. The phrase, “with the approval of the judge” merely means that the trial judge is to ascertain that the defendant is aware of the nature and consequences of his waiver. Erroneously, at one time it was thought that a judge had discretion to grant or deny a request for a waiver of a jury trial whether the defendant knew the nature and consequences of his act or not .¹⁹³⁹ “The constitutional provision is self-executing.” ¹⁹⁴⁰ Consider that while the defendant does not have an absolute right to trial by the court alone, neither does the court have an absolute right to deny him a nonjury trial. ¹⁹⁴¹ The court’s discretion is a judicial, not a personal, one; that is, the discretion is not synonymous with the judge’s sense of morality or sense of abstract justice.¹⁹⁴² A judge may not deny a waiver of a jury trial because it will have to do some work—or actually work harder—or perform a disagreeable duty. ¹⁹⁴³ The pivotal point is this:

The constitutional provision [confers] on a defendant the right to be tried by a jury, or without a jury, at his option, unless for some compelling ground arising out of the attainment of the ends of justice his option might

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