Request By:
Mr. Jack Arnold
Attorney at Law
117 Court Street
P.O. Box 453
Cynthiana, Kentucky 41031
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Harrison County Attorney's Office requests the opinion of this office on the following question:
"May the county attorney in a misdemeanor case in district court demand that the misdemeanor case be tried with jury?"
The court held in
Phipps v. Commonwealth, 205 Ky. 832, 266 S.W. 651 (1924), that "A defendant in a misdemeanor trial in the circuit court is entitled to 12 jurors, but may agree to a lesser number or waive any number or all of the jurors, and submit the law and facts to the court." See
Branham v. Commonwealth, 209 Ky. 734, 273 S.W. 489 (1925), reciting the similar holding in earlier Kentucky cases.
The right of trial by jury is recognized in Sec. 7, Kentucky Constitution. KRS 29A.270(1) provides that defendants shall have the right to a jury trial in all criminal prosecutions, including prosecutions for violations of traffic laws, in the circuit and district courts. KRS 29A.280(1) provides that juries for all trials in circuit court shall be composed of twelve (12) persons. Juries for all trials in district court shall be composed of six (6) persons. The latter provision merely repeats the provision of Sec. 248, Kentucky Constitution.
It is thus our opinion that in a misdemeanor case in district court the defendant may waive his right to be tried by a jury, and he may instead be tried by the judge without the intervention of a jury, provided that: (1) the defendant affirmatively in open court waives such right and enters into the waiver understandingly and voluntarily; and (2) the Commonwealth agrees and the trial court approves. See
Ashton v. Commonwealth, Ky., 405 S.W.2d 562 (1966) 571. We are saying here that the consent of both the court and the Commonwealth prosecutor is essential in this waiver situation. See the later case of
Short v. Commonwealth, Ky., 519 S.W.2d 828 (1975) 832, reiterating this doctrine of waiver.
The answer to your immediate question is that where the defendant in a misdemeanor case in district court waives a jury, if you as the prosecutor indicate to the court that you do not agree or consent to the waiver, then the waiver would not be effective, even though the court would agree to the waiver. As we say, both the court and the prosecutor must agree to the waiver for the waiver to be effective. In addition, the cases on this point carry no suggestion that, when the prosecutor objects to an attempted waiver of trial by jury, he must advance any reason for his objection. See
Hayes v. Commonwealth, Ky., 470 S.W.2d 601 (1971) 603. Moreover, in Hayes, above, where the waiver was objected to by the prosecution and the trial court over the appellant's objection impaneled a jury and submitted the case to the jury, the appellate court upheld that procedure, saying that the court was persuaded that there is no constitutional right, vouchsafed by the Federal or Kentucky Constitution, which grants a defendant in a criminal trial the unqualified right to be tried by a judge without the intervention of a jury.
Concerning the waiver of a jury, Justice Sutherland, for the court, in
Patton v. United States, 281 U.S. 276-313, 74 L. Ed. 854 (1929), wrote that ". . . the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from the mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity." Such considerations would, we think, apply equally to the government prosecutor.
The court, in
Singer v. United States, 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1965), in dealing with Federal Criminal Procedure Rule 23(a), conditioning a defendant's waiver of a jury trial upon the court's and the government's (prosecutor's) consent, observed that ". . . the government attorney in a criminal prosecution is not an ordinary party to a controversy, but a 'servant of the law' with a 'twofold aim . . . that guilt shall not escape or innocence suffer' . . . . 'Because of this confidence in the integrity of the federal prosecutor, Rule 23(a) does not require that the government articulate its reasons for demanding a jury trial at the time it refuses to consent to a defendant's proffered waiver. Nor should we assume that a federal prosecutor would demand a jury trial for an ignoble purpose.'" We think that principle would apply in this Kentucky situation.
CONCLUSION
In a misdemeanor case in district court the defendant may waive his right to be tried by a jury, and he may instead be tried by the judge of the court without the intervention of a jury, provided that (1) the defendant affirmatively in open court waives such right and enters into the waiver understandingly and voluntarily; and (2) the Commonwealth agrees and the trial court approves. Thus the waiver would require both the consent of the prosecutor and the judge. In addition, where the prosecutor objects to the waiver, and thus in effect demands a trial by jury, he is not required to advance any specific reason for his demanding a trial by jury.