Procedures for Criminal Bench Trials in Superior Court

The North Carolina Constitution historically mandated trial by jury in all criminal cases in superior court. See N.C. Const. Art. I, Section 24 (2014) (“No person shall be convicted of any crime but by the unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.”); State v. Hudson, 280 N.C. 74, 79 (1971) (“In this State, the only exception to the rule that ‘nothing can be a conviction but the verdict of a jury’ . . .  is the constitutional authority granted the General Assembly to provide for the Initial trial of misdemeanors in inferior courts without a jury, with trial De novo by a jury upon appeal. . . . It is equally rudimentary that a trial by jury in a criminal action cannot be waived by the accused in the Superior Court as long as his plea remains ‘not guilty.’”); State v. Bunch, 196 N.C. App. 438, 440 (2009), aff’d, 363 N.C. 841 (2010) (“Unlike the right to a jury trial established by the Sixth Amendment of the U.S. Constitution, the right to a jury trial pursuant to Article I, Section 24, cannot be waived.”); see also State v. Holt, 90 N.C. 749, 750–51 (1884) (“The constitution (Art. I, §13) provides that “no person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court. The legislature may, however, provide other means of trial for petty misdemeanors with the right of appeal.’”). Thus, a defendant who wished to proceed to trial in superior court had to do so before a jury. There was no option for a criminal trial in superior court in which the judge served as the finder of fact – a procedure known as a bench trial. The state constitution was, however, amended effective December 1, 2014 (for criminal offenses arraigned in superior court on or after that date) to allow a defendant in a noncapital case to waive the right to a jury trial with the consent of the trial judge. S.L. 2013-300.

As a result, Article I, Section 24 of the North Carolina Constitution currently provides:

No person shall be convicted of any crime but by the unanimous verdict of a jury in open court, except that a person accused of any criminal offense for which the State is not seeking a sentence of death in superior court may, in writing or on the record in the court and with the consent of the trial judge, waive jury trial, subject to procedures prescribed by the General Assembly. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.

G.S. 15A-1201 prescribes the procedures for waiving jury trial in superior court in favor of a bench trial. G.S. 15A-1201(b) provides that when a defendant — with the consent of the trial judge — waives the right to trial by jury, the whole matter of law and fact “shall be heard and judgment given by the court.” Those determinations include aggravating factors in impaired driving cases under G.S. 20-179 and aggravating factors in structured sentencing cases under G.S. 15A-1340.16.

So how is it done?

A defendant must give timely notice. A defendant who seeks a bench trial may give notice in any one of three ways:

1. by written stipulation, signed by the defendant and the State;
2. by filing a written notice of intent within the earliest of (a) 10 working days after arraignment; (b) 10 working days after service of an administrative setting under G.S. 7A-49.4(b); or (c) 10 working days after the setting of a definite trial date under G.S. 7A-49.4(c); or
3. by giving notice of intent on the record in open court by the earlier of (a) the time of arraignment, or (b) the calling of the calendar for an administrative setting under G.S. 7A-49.4(b) or a hearing to set a definite trial date under G.S. 7A-49.4(c).

What if multiple defendants are joined for trial? If more than one defendant is joined for trial, all defendants must waive the right to trial by jury for there to be a bench trial. G.S. 15A-1201(b). Alternatively, the trial court may sever the cases to afford a single defendant a bench trial. Id. Counsel for co-defendants must be served with any stipulation to a bench trial or written notice of intent to waive a jury trial. G.S. 15A-1201(c).

Judicial consent. When a defendant provides notice of his or her intent to waive a jury trial in favor of a bench trial, the State must schedule a hearing to determine whether the judge agrees to hear the case without a jury. G.S. 15A-1201(d) provides that the decision to grant or deny the defendant’s request must be made “by the judge who will actually preside over the trial.”

At the hearing, the judge must address the defendant personally and determine whether the defendant fully understands and appreciates the consequences of the decision to waive the right to trial by jury. Id. This inquiry probably should include the following questions:

• Do you understand that you are appearing in superior court because you are charged with committing a crime/crimes?
• Do you understand the nature of the charges and every element of the charge/charges?
• Do you understand that the maximum punishment for this charge/these charges is [state total maximum punishment and any applicable mandatory minimum punishment]?
• Do you understand you have a right to be tried by a jury of 12 of your peers?
• Do you understand that you have the right to participate in selecting members of the jury?
• Do you understand that jury verdicts must be unanimous?
• Do you understand that if you waive a jury trial, I alone will decide your guilt or innocence?
• Do you understand that if you waive a jury trial, I alone will determine whether any aggravating factors apply to sentencing in your case?
• Have you discussed the waiver of your right to jury trial with your attorney?
• Do you now wish to waive your right to trial by jury and have the issues of law and fact in your case determined by me?

See id.; AOC-CR-405 (Waiver of Jury Trial); cf. State v. Rollinson, 383 N.C. 528, 534-35 (2022) (holding that the trial court did not abuse its discretion in the manner in which it personally addressed the defendant or in how it determined that the defendant understood the consequences of the waiver of jury trial in the habitual felon phase of the trial; trial judge addressed the defendant by stating “you can waive your right to a jury trial” and defendant’s counsel responded after speaking with the defendant; the previous day the trial court had conducted a longer colloquy to confirm the defendant’s waiver of a jury trial on the substantive charges).

The judge also must determine whether the State objects to the waiver and, if so, why. G.S. 15A-1201(d)(2). The judge then must consider the arguments presented by the State and the defendant regarding the defendant’s waiver of a jury trial. Id.

The form. AOC-CR-405 sets forth a form waiver, providing an acknowledgement of rights and waiver to be signed by the defendant as well as a certification by the attorney for the defendant stating that the attorney has explained the charges, the potential punishment, the nature of the proceedings, the right to trial by jury, and the consequences of waiving that right.

Side two of AOC-CR-405 contains findings of fact and conclusions of law that a judge may select as appropriate in consenting to or in denying the defendant’s waiver.

A defendant may change his or her mind. Once. After a trial judge has consented to a bench trial, a defendant may revoke the waiver one time as of right within 10 business days of the defendant’s initial notice. G.S. 15A-1201(e). The defendant must do so in open court with the State present or in writing to both the State and the judge. Id. Otherwise, the defendant may only revoke the waiver upon the trial judge finding the revocation would not cause unreasonable hardship or delay to the State. Id.

Once a revocation is granted, the decision is final and binding. Id. The defendant no longer has the option for a bench trial.

What if there is a motion to suppress? If a defendant has elected and the trial court has consented to a bench trial and the defendant also has made a motion to suppress, the trial court must make written findings of fact and conclusions of law in ruling on that motion. G.S. 15A-1201(f).

Does the trial court give jury instructions? In a bench trial, the trial court is not required to set forth the law it will follow in the form of jury instructions. See State v. Cheek, 267 N.C. App. 579, 591-92 (2019), aff’d, 377 N.C. 528 (2021); State v. Jones, 260 N.C. App. 104, 108 (2018) (“Bench trials differ from jury trials since there are no jury instructions . . . to show exactly what the trial court considered . . .”). Nevertheless, the trial court may exercise its discretion to provide jury instructions, which may inform the parties of the issues the judge will deliberate. Cheek, 267 N.C. App. at 595 (stating that in this “unusual case” the additional procedural steps the trial court used, including providing jury instructions, were “fully within its discretion” though not required); see also Cheek, 377 N.C. at 540 n.2 (“Although we are inclined to agree with the Court of Appeals that there was no necessity for the trial court to have instructed itself concerning the applicable law . . . we do not believe that the trial court erred by proceeding as it did and will evaluate defendant’s challenges to the trial court’s judgment utilizing the approach that the trial court elected to adopt in deciding the relatively novel issues that were before it in this case.”)

Must the trial court make findings of fact and conclusions of law? Findings of fact and conclusions of law are not required in a criminal bench trial. Cheek, 267 N.C. App. at 591-92. Instead, the trial court may enter a general verdict, just as a jury would in a jury trial. Id. at 592; see also Cheek, 377 N.C. at 540 n.2  (“Although we are inclined to agree with the Court of Appeals that there was no necessity for the trial court . . . to enter an order containing findings of fact and conclusions of law . . . we do not believe that the trial court erred by proceeding as it did and will evaluate defendant’s challenges to the trial court’s judgment utilizing the approach that the trial court elected to adopt in deciding the relatively novel issues that were before it in this case.”). While the trial court generally is required to determine only whether the defendant is guilty or not guilty, some offenses (like second degree murder) require special findings to ensure the defendant may properly be sentenced. Special findings also are required for aggravating factors under structured sentencing, see G.S. 15A-1340.1(a1), (a3), and impaired driving offenses sentenced under G.S. 20-179.

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