When voters head to the polls Tuesday they will have a chance to change the way criminal courts operate in North Carolina.
If passed, a little-known referendum would change the state Constitution. It asks voters whether anyone accused of a crime in superior court should be able to waive their right to a jury trial, and choose a bench trial by a judge. A judge would have to give his or her consent, and the option would not apply to anyone facing the death penalty.
A publication by the School of Government at the University of North Carolina at Chapel Hill, weighs the arguments for and against the change.
By allowing accused felons the option of a bench trial, the report says the state could save time and money by operating more efficiently. The report also says judges might be better to hear certain complex cases, or cases with extremely graphic and horrific evidence. The report also says North Carolina is the last remaining state to not allow felony bench trials.
In opposition to changing the law, the study says allowing bench trials could encourage "judge shopping" by attorneys who want a certain judge to hear their case. Felony bench trials would also put more power in the hands of judges, and potentially open the door to favoritism with certain attorneys and defendants.
Criminal defense attorney Chris Fialko calls the proposed amendment a solution in search of a problem. If passed, he expects it will be rarely used, which he says weakens the argument about saving time and money.
"Instinctively, it's a bad thing," said Fialko. "It's a concentration of power and Americans don't like the power to be concentrated in one place," he said talking about the authority of elected judges to decide guilt or innocence, and punishment.
"I have more faith in juries, than perhaps other people do," he said, about the argument that judges are better qualified to hear certain complex or horrific cases.
Retired prosecutor Steve Ward, who is now an assistant professor at Belmont Abbey College in the criminal justice department, said changing the law would give defendants one more legal option.
"More than anything else, it's a tactical decision by the defendant and defense attorney," said Ward. "It would have to be in their best interest to waive the jury trial," he said.