Maryland Right To Trial By Jury

• Jurisdiction: Maryland

III. Maryland right to trial by jury

A. Sources of the right to trial by jury

1. Md. Decl. of Rights

Md. Decl. of Rights art. 21 requires an "impartial jury, without whose unanimous consent he ought not to be found guilty." Md. Decl. of Rights art. 24 provides that "no man ought to be . . . deprived of his life [or] liberty . . . but by judgment of his peers."

In Fisher v. State, 305 Md. 357 (1986), the Court of Appeals articulated four factors to determine whether the Md. Decl. of Rights entitles the defendant to trial by jury, as follows: (a) whether the offense "had historically been subject to the summary jurisdiction of justices of the peace or whether it had historically been tried before juries"; (b) whether the offense "is an infamous crime or subject to infamous punishment"; (c) the "seriousness of the offense"; and (d) the "place or length of incarceration." Id. at 365-66. In In re Glenn, 54 Md. 572, 606 (1880), the Court of Appeals held that the Md. Decl. of Rights does not entitle the defendant to trial by jury for vagrancy and disorderly conduct.

2. Maryland common law

Maryland common law includes the right to trial by jury in Circuit Court if the defendant faces potential incarceration, regardless of reason that the case is in Circuit Court, i.e., (a) in Circuit Court based on original exclusive or concurrent jurisdiction; (b) in Circuit Court based on a jury trial prayer in District Court; (c) in Circuit Court based on a trial de novo appeal following conviction in District Court; or (d) in Circuit Court based on remand from the Court of Special Appeals or Court of Appeals. Md. Rule 4-311.

In Ashford v. State, 358 Md. 552, 569-70 (2000), the Court of Appeals held that a defendant is entitled to trial by jury for constructive criminal contempt. In Dorsey v. State, 356 Md. 324 (1999), the Court of Appeals held: "[W]hile the need for immediate vindication of the dignity of the court justifies the immediate summary punishment by a trial judge of direct criminal contempt, such need furnishes no ground for a court-created exception, in a constructive criminal contempt case, to the statutory jury trial rights. . . ." Id. at 348. With a potential for incarceration, and with the legislature not having amended the common law, the defendant is entitled to trial by jury.

Assume that the defendant is in District Court, with the right to trial by jury in Circuit Court, which the defendant waives by remaining in District Court and not praying a jury trial. If the defendant is convicted in District Court and appeals by way of a trial de novo in Circuit Court, the defendant is entitled to trial by jury, even though the defendant previously waived that right in District Court. In Hardy v. State, 279 Md. 489 (1977), the Court of Appeals held:

[T]he statutory right to elect a jury trial at the initial stage of the District Court proceedings, and the statutory right to a jury upon a de novo appeal, are separate and distinct statutory rights . . . Waiver of one statutory right does not imply waiver of another right under a different statutory provision.

Id. at 495. In Thompson v. State, 278 Md. 41, 53 (1976), the Court of Appeals recognized a common law right to trial by jury in criminal cases in Circuit Court, regardless of the penalty, although that right may be modified by the Maryland General Assembly. See Crichton v. State, 115 Md. 423 (1911) (no right to trial by jury when charged with speeding); State v. Warden, Baltimore City Jail, 110 Md. 579 (1909) (right to trial by jury when charged with assault).

Collateral consequences do not entitle the defendant to trial by jury. In Smith v. State, 17 Md. App. 217, 233-36 (1973), the defendant was convicted in District Court of two traffic offenses and appealed to Circuit Court, where he requested a trial by jury. The trial court denied the request, and the defendant appealed, arguing that he was entitled to trial by jury because of the possible penalty of mandatory revocation of his operator's license, if convicted. The Court of Special Appeals rejected this argument, stating:

From the types of offenses to which the mandatory revocation of a license is applicable, we find the legislative intent in revoking the privilege to drive a motor vehicle on the highways of this State to be the furtherance of the public safety and welfare, necessary for the proper administration of the traffic laws, rather than punishment. . . . We are not convinced that we should consider collateral or incidental consequences in determining whether an offense is petty or serious.

Id. at 236.

3. Maryland statutes

Md. Code Ann., Crim. Proc. § 6-101, provides: "In a criminal case tried in a court of general jurisdiction, there is no right to a jury trial unless: (a) the crime charged is subject to a penalty of imprisonment; or (b) there is a constitutional right to a jury trial for the crime." Similarly, Md. Code Ann., Cts. & Jud. Proc. § 12-401(g)(1), provides: "In a criminal appeal that is tried de novo, there is no right to a jury trial unless the offense charged is subject to a penalty of imprisonment or unless there is a constitutional right to a jury trial for that offense."

In Kleberg v. State, 318 Md. 411, 414-15 (1990), the Court of Appeals held: "[I]n every de novo criminal appeal where the offense is one subject to the penalty of imprisonment, there is a right to a jury trial." Id. at 414-15. In Harper v. State, 312 Md. 396, 404 (1988), the Court of Appeals held that the defendant was entitled to a jury trial on a de novo appeal from a District Court order finding him in direct criminal contempt.

Md. Code Ann., Cts. & Jud. Proc. § 4-302, provides that a jury trial may be denied if both the trial court and the prosecutor agree, on the record, that punishment shall not exceed 90 days. This statutory denial of the right to trial by jury has been held unconstitutional when applied in DUI cases and in theft cases and would almost certainly be held unconstitutional when applied to any offense with potential incarceration. Fisher, 305 Md. at 368; Kawamura v. State, 299 Md. 276, 296-97 (1984).

4. District Court

There are no jury trials in District Court. Md. Code Ann., Cts. & Jud. Proc. § 4-302, provides that, if a District Court case has potential incarceration in excess of 90 days on any given count, the defendant is entitled to trial by jury. In Duckworth v. District Court of Maryland, 119 Md. App. 73, 76 (1998), the Court of Special Appeals held that, in determining whether there is a right to trial by jury for a District Court defendant, charges must be examined individually and not in the aggregate because the statute uses the word "offense" in the singular.

If a District Court defendant is entitled to trial by jury, the trial court must so inform the defendant. Md. Rule 4-301(a). If a District Court defendant is entitled to trial by jury, and desires a jury trial, the defendant must demand a jury trial, through a "prayer for jury trial," made in writing 15 days before trial or in open court on the date of trial. Md. Rule 4-301(b)(1).

In Smith v. State, 73 Md. App. 156, 160-61 (1987), the Court of Special Appeals held that the District Court's failure to inform the defendant, charged with driving under the influence, of the right to trial by jury did not affect the...