LOUISIANA (Criminal Procedure) – Who Wants a Jury Anyways?

Bench trial or jury trial? Having one’s fate decided by a judge or jurors? It is a very important decision. Selecting a jury takes time, and attorneys can play on the emotions of the jurors to create sympathy for or vilify the defendant. Litigants may simply want to avoid a jury trial and have their case heard by a judge. In Louisiana the state constitution allows a defendant to waive his or her right to a jury trial, except in capital cases. In 2010, Louisiana legislators added an amendment to this section mandating that the defendant cannot waive a jury within 45 days of the start of the trial. So what happens when a defendant wants to waive the jury, but the trial date is set forty-three days from a pre-trial hearing? The Supreme Court of Louisiana determined that the defendant should still have the right to waive the jury in this case, especially considering that the defense attorney conditioned the setting of the trial date on the defendant’s ability to waive the jury. The full opinion is available here.

In September 2009 the defendant was charged with three counts of attempted first degree murder and one count of aggravated criminal damage to property. Nearly two years later at a status conference in August 2011, the state requested that the trial date be set for October 11, 2011, forty-three days away. The defense attorney acceded to the trial date on the condition that the defendant still be allowed to waive the jury. The court accepted the defendant’s waiver, but the prosecution objected: “‘The date that we have selected is inside the 45 days as required by the constitution. . . . Your Honor, the State’s rushing this trial date in order to get a jury trial.’” The appellate court agreed with the prosecution and reversed.

However, the state high court reversed and reinstated the trial court’s ruling. In Louisiana the defendant can waive a jury with no questions asked up to fifteen days after arraignment. After that time the defendant may still waive the jury with court approval. The 2010 amendment changed the time restrictions, slightly, ending the defendant’s right to waive the jury 45 days from trial. The defendant argued that this time restriction essentially allows the prosecution to remove the defendant’s ability to waive a jury by scheduling a trial within the 45-day period. The prosecution retorted that it “is the party possessing the right to control the prosecution of a criminal offense and to determine who, when and how to prosecute.” The prosecution also pointed out that the defense did not have to accept the state’s proposed trial date.

The Louisiana Supreme Court first noted that the defense agreed to the trial date on the condition that the defendant could waive the right to a jury trial. The court then determined that the legislature did not intend for the prosecution to be able to vitiate the defendant’s ability to waive a jury simply by scheduling a trial date in the 45-day period. The amendment as originally proposed stated that a defendant could waive a jury with the consent of the court and the prosecuting attorney. Because the legislature amended this section to remove the consent of the prosecutor requirement, the court determined that the legislature did not intend for the prosecution to be able to destroy the defendant’s ability to waive a jury. Thus, the defendant in this case should still be able to waive the jury.

Chief Justice Kimball concurred in the result. She agreed with the majority’s interpretation of the legislative history of the constitutional amendment. But, she disagreed with the majority’s conclusion that the prosecution could never set trial less than 45 days from the trial scheduling conference. In such cases the defendant’s right to waive the jury must be protected, and it was in this case by counsel’s conditional acceptance of the trial date.

Justice Clark dissented, arguing that because the defendant could have, but did not, waive the jury at any point in the intervening two years from the filing of the information. “[T]he defendant gambled his initial trial setting would be set for a future time period longer than 45 days hence. He lost that bet.”

The full opinion is available here.

–Timothy Huffstutter

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Our Editors



Rebecca Green, College of William & Mary Law School

Scott Graves, National Center for State Courts