Wednesday, November 23, 2011

Ohio bench - jury trial legislation

The Cleveland Plain Dealer, last weekend, carried a story about former Summit County prosecutor Lynn Slaby, who is now a state representative, introducing a bill last month by at the urging of the Ohio Prosecuting Attorneys Association that would change Ohio law to give themselves veto power when a criminal defendant chooses to have his case heard by a judge instead of a jury. [See text and analysis of HB 265, introduced June 14, 2011]

The Ohio Judicial Conference, which opposes the bill, notes that its recent impact statement that “Ohio is one of twenty-one states granting criminal defendants the right to choose whether they will be tried by jury or by the judge, and does not require the consent of the prosecuting attorney to waive jury trials. The remaining 29 states, the Federal system, and Washington D.C. require the consent of the prosecuting attorney in order to waive trial by jury.

The Judicial Conference’s impact statement also briefs some relevant case history, including the Ohio Supreme Court’s upholding the validity of then General Code 13442-4 that in all criminal cases pending in state courts of record in this state, the defendant shall have the right to trial by jury, and may, if s/he so elects, be tried by the court without a jury… [ State v. Smith, 123 O St. 237 (1931)] [General Code 13442-4 is now ORC § 2945.05; See also §2945.06 with respect to “Procedures for trial by court" ]

The Judicial Conference also addressed the federal aspect, noting that in Singer v. United States, the U.S. Supreme Court examined whether a criminal defendant in a federal criminal case has an unconditional constitutional right to a trial by jury, and whether there was also a correlative constitutional right for a criminal defendant to have is/her case decided by the judge alone if s/ he considers such a trial to be to her/ his advantage. [ Singer v. US, 380 US 24 (1965)]. The Court held that there is no constitutional or federally recognized right to a criminal trial before a judge sitting alone, and, citing Patton v. United States, reaffirmed their previous holding that a defendant can waive the right to trial by jury. [ Patton v. US 281 US 276 (1930)].

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