CHAPTER 26

TRIAL BY JUDGE OR JURY

§ 26.01 Scope of the Jury Trial Right

§ 26.02 Jury Unanimity

§ 26.03 Waiver Procedures

§ 26.04 Bench Trials

§ 26.01

Scope of the Jury Trial Right

The sixth amendment and chapter I, article 10 of the Vermont Constitution give defendants the right to a jury trial in criminal proceedings. Whereas the sixth amendment guarantee is construed to apply only to crimes carrying a potential for more than six-months imprisonment,{1} the state provisions guarantee a jury for every criminal prosecution, even petty offenses.{2} The "jury" to which the state constitutional guarantee refers is the common law jury of twelve.{3}

Article 10 covers only criminal prosecutions and its jury right, like the sixth amendment's, does not extend to quasi-criminal actions like juvenile delinquency proceedings,{4} civil license suspension proceedings,{5} or probation revocation proceedings. Some noncriminal proceedings do require a jury, however. Article 12 of the state constitution says that the right to a jury trial applies to "any issue of fact, proper for the cognizance of a jury[,]"{6} meaning any matters which were tried by a jury at common law.{7} The provision does not require a jury in license suspension proceedings because such proceedings were "unknown at common law,"{8} nor should it require submission to a jury of fact questions which are traditionally entrusted to the judge, such as threshold questions about the admissibility of evidence,{9} most fact questions involved in a motion to suppress evidence,{10} or disputed questions at sentencing.{11} On the other hand, when a criminal statute provides for enhanced punishment for defendants who have previously been convicted, the allegation of prior convictions must be charged in the information and found by the jury, generally in a bifurcated proceeding.{12}

§ 26.02

Jury Unanimity

Part and parcel of the jury trial right is the right to a unanimous verdict, which chapter I, article 10 of the state constitution makes explicit.{13} Unanimity questions sometimes arise in the context of jury instructions which permit jurors to convict on alternative factual theories. In State v. Couture{14} the defendant was charged with a single count of kidnapping, and the evidence showed that he kidnapped a number of people. The judge instructed the jury to return a verdict of guilty if he kidnapped any one of the alleged victims, and the jury returned a general verdict. The Vermont Supreme Court held that the instruction violated the right to a unanimous verdict:

In Vermont, a criminal defendant has a constitutional right to be tried by a common law jury of twelve, . . . "without the unanimous consent of which jury, he cannot be found guilty. . . ." Vt. Const. ch. I, art. 10 (emphasis supplied). The jury instructions in this case violated the Vermont Constitution by permitting the jury to convict the defendant for kidnapping, without assuring its unanimity regarding the essential element of defendant's confinement of a particular person.{15}

The unanimity issue obviously does not come up in a judge-tried case, although ambiguity in the basis of a judge's finding of guilt can give rise to other problems (e.g., if one of the possible bases of the finding lacks sufficient evidentiary support).{16}

§ 26.03

Waiver Procedures

The right to a jury trial is waivable by the defendant "with the consent of the prosecuting officer entered of record . . . in open court or by writing signed by him and filed with the court. . . ."{17} Rule 23 of the rules of criminal procedure adds the requirement of record approval by the judge, as well as the prosecutor,{18} after a personal colloquy to make sure that the defendant understands the basics of the jury trial right and what he or she is giving up by waiving it.{19}

The same strict waiver rules do not apply if the defendant is not waiving a jury altogether, but merely stipulating to a jury of fewer than twelve. Such stipulations, the Vermont Supreme Court held over a sharp dissent in State v. Machia,{20} need not be made by the defendant personally, and can be indicated by defense counsel orally with the defendant's tacit consent. By rule such stipulations must be made in writing with court approval,{21} but the court in Machia held that the lack of a writing was harmless.{22} A finding of the defendant's tacit approval should not be permissible unless the record at least indicates the defendant's presence at the time the stipulation was offered.{23}

§ 26.04

Bench Trials

Besides saving time and expense, a bench trial offers few advantages over a jury. Factors that tend to prejudice a jury (inflammatory publicity, an ugly or notorious crime) can be counted on to influence judges as well, notwithstanding that they are officially supposed to be above such things. In some situations the jury may be a "cleaner" fact finder than the judge. The judge who is familiar with pretrial proceedings and has excluded evidence will have to compartmentalize prejudicial but inadmissible evidence, a task which Judge Learned Hand called a "mental gymnastic" beyond the abilities of judges and juries alike.{24}

In most respects the course of a bench trial is not formally different from a jury trial through closing arguments (to which defense counsel is entitled in a bench trial as in a jury trial),{25} except that the judge will generally be less scrupulous about evidentiary formalities, and may provisionally allow questionably admissible evidence, deferring a ruling until later.

General and Special Findings

After closing arguments the judge must make a general finding of guilt or innocence,{26} and must "find the facts specially" if requested to do so.{27} The special findings, at least those that relate to elements of the offense, must be based on evidence "sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt."{28}

The findings "must indicate to the parties and to [the Supreme Court] . . . what was decided and how the decision was reached."{29} But they need not be as comprehensive as jury instructions, and need not even cover all the elements of the offense.{30}

1. Blanton v. City of North Las Vegas, 489 U.S. 538 (1989); Baldwin v. New York, 399 U.S. 66, 69 (1970) (plurality opinion).

2. State v. Peterson, 41 Vt. 504 (1869); State v. Mahoney, 124 Vt. 488 (1965).

3. See State v. Machia, 155 Vt. 192, 194-95 (1990), and id. at 204-07 (Dooley, J., dissenting); State v. Couture, 146 Vt. 268, 272 (1985); State v. Hirsch, 91 Vt. 330, 335-36 (1917). By contrast, the sixth amendment allows juries of fewer than twelve, but greater than five. Ballew v. Georgia, 435 U.S. 223 (1978) (five-member jury violates sixth amendment); Williams v. Florida, 399 U.S. 78 (1970).

4. McKiever v. Pennsylvania, 403 U.S. 528, 545 (1971), held that the sixth amendment does not require juries in delinquency proceedings. Most other sixth amendment and article 10 rights do apply to delinquency proceedings. See In re R.B., 134 Vt. 368, 369 (1976) (in general, "it is required that in juvenile proceedings all constitutional guarantees associated with traditional prosecutions apply").

5. Shaw v. Vermont District Court, Unit No. 3, 152 Vt. 1, 7 (1989). Cf. State v. Strong, No. 91-058, slip op. 8-9 (Vt. Jan. 10, 1992) (DUI license suspension proceeding was not a criminal prosecution for double jeopardy purposes); 23 V.S.A. § 2305 (no jury trial in traffic bureau proceedings).

6. "[W]hen any issue of fact, proper for the cognizance of a jury is joined in a court of law, the parties have a right to trial by jury, which ought to be held sacred." Chapter II, article 38 similarly provides, "Trials of issues, proper for the cognizance of a Jury as established by law or by judicial rules adopted by the Supreme Court not inconsistent with law . . . shall be by Jury. . . ."

7. Shaw v. Vermont District Court, 152 Vt. 1, 6 (1989); Plimpton v. Town of Somerset, 33 Vt. 283, 290-92 (1860).

8. Shaw v. Vermont District Court, 152 Vt. 1, 6 (1989).

9. See V.R.E. 104(a).

10. See State v. Ryea, 153 Vt. 451, 456 (1990); State v. Pike, 143 Vt. 283, 288-89 (1983). The exception is the voluntariness of confessions, which the jury must be given an opportunity to pass on. State v. Caron, 155 Vt. 492, 502-03 (1990).

11. McMillan v. Pennsylvania, 472 U.S. 79 (1986) (possession of a firearm as sentence enhancer need not be proved beyond a reasonable doubt); State v. Thompson, 150 Vt. 640, 645-46 (1989). One possible exception is fact disputes on restitution claims. See M. Raymond, The Unconstitutionality of the Victim and Witness Protection Act Under the Seventh Amendment, 84 Col. L. Rev. 1590 (1984).

12. State v. Cameron, 126 Vt. 244 (1967).

13. "That in all prosecutions for criminal offenses, a person hath a right to . . . a speedy public trial by an impartial jury of the country; without the unanimous consent of which jury, he cannot be found guilty. . . ."

14. 146 Vt. 268 (1985).

15. State v. Couture, 146 Vt. 268, 272 (1985). The same sort of error prompted reversals in State v. Bonilla, 144 Vt. 411 (1984), and State v. Corliss, 149 Vt. 100, 102-03 (1987). But see State v. Holcomb, No. 90-275, slip op. 2-5 (Vt. March 29, 1991) (failure to distinguish between two offenses not plain error); State v. Vincent, 156 Vt. 259, 264 (1991) (no election required when two episodes so closely related they form single transaction). See § 5.11, supra (duplicitous pleadings).

16. In re K.B., 155 Vt. 514, 515-16 (1990).

17. Vt. Const. ch. I, art. 10. See State v. Ibey, 134 Vt. 140, 141-42 (1976) (under article 10, waiver "must affirmatively appear from a writing signed by the defendant, or from the oral record made in open court, that the defendant personally indicated, understandingly, his desire to waive a trial by jury"). For a history of this constitutional waiver provision, see State v. Machia, 155 Vt. 192, 199-203 (1990) (Dooley, J., dissenting). The constitution does not permit jury waivers for offenses "punishable by death or imprisonment in the state prison" but because Vermont has no death penalty or "state prison," a jury may be waived in any criminal case. A jury trial waiver form is reproduced in App. 14.

18. V.R.Cr.P. 23(a). See State v. Coita, 153 Vt. 18, 20-22 (1989).

19. The judge "shall not accept the defendant's waiver of the right to a trial by jury" without a personal colloquy to determine his understanding "(1) That the jury consists of 12 members of the community, and that the defendant may participate in their selection; (2) That before the defendant can be convicted, all 12 members of the jury must agree on the defendant's guilt; [and] (3) That where a jury is waived, the court alone decides guilt or innocence in accordance with the facts and the law." See State v. Lafar, No. 92-272 (April 1, 1993) (mem.); State v. Conn, 152 Vt. 99, 105 (1989).

20. 155 Vt. 192 (1990).

21. V.R.Cr.P. 23(b).

22. State v. Machia, 155 Vt. 192, 199-200 (1990).

23. Compare State v. Machia, 155 Vt. 192, 199 (1990) (stipulation "confirmed in defendant's presence") with State v. Prime, 137 Vt. 340, 342-43 (1979) (counsel could not waive possible claim of jury prejudice in defendant's absence).

24. See Bruton v. United States, 391 U.S. 123, 129 (1968); Delli Paoli v. United States, 352 U.S. 232, 247 (1957) (quoting Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932)).

25. Herring v. New York, 422 U.S. 853 (1973).

26. V.R.Cr.P. 23(c).

27. V.R.Cr.P. 23(c).

28. State v. Paquette, 151 Vt. 631, 634 (1989). Cf. V.R.Cr.P. 23, Reporter's Notes, proposing the "clearly erroneous" standard for review of special findings. An appellate court will deem a finding clearly erroneous if its review of the record leaves "the definite and firm conviction that a mistake has been committed." In re Nash, No. 88-848 (Vt. May 21, 1992) (opinion on motion for reargument) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

29. In re J.R., 147 Vt. 7, 11 (1986). See also Helm v. Helm, 148 Vt. 336, 338 (1987) ("Our law tests intended, formal findings by the same standard of adequacy to support the result, whether they are made after the filing of requests or by the court on its own initiative"); Jensen v. Jensen, 139 Vt. 551, 552-53 (1981).

30. State v. Coita, No. 88-249 (Vt. March 20, 1991) (mem.) The Vermont Supreme Court saw "a clear distinction between the function of a court sitting as the trier of fact from its function as instructor to the jury in a jury trial." Id. But see In re C.I., No. 91-429 (Vt. Aug. 18, 1992) (unpublished) (delinquency case remanded because trial court failed to make findings on essential elements of the offense).