accordance with subsection (b) of this section, an order requiring the individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this part. (b) An agency of the United States may issue an order under subsection (a) of this section only if in its judgment (1) the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination. (Added Pub. L. 91-452, title II, § 201 (a), Oct. 15, 1970, 84 Stat. 927.) See also 6005. State v. Carr CONSTITUTIONAL LAW: TRIAL BY JURY: THE JUDGE'S AUTHORITY Captain David A. Higley, USMC* I. MAY THE TRIAL JUDGE disapprove an accused's request to be tried by the court alone? In State v. Carr,1 the defendant was charged with an offense recognized by Oregon to be a felony. When Carr appeared for trial, he demanded to be tried by the court alone. After Carr's alternative trial rights were explained to him, the judge concluded that his explanation "never did get through to the defendant";2 as a result the judge denied the defendant's request for trial by judge alone. At a trial to a jury, Carr was convicted as charged. On appeal, Carr alleged that he had been denied his right to be tried by the court alone. According to the defendant, an accused's "interests" require that he have “alternative choices as to the fact finder." 3 After citing article I, section 11, of the Oregon Constitution, which provides that an "accused Captain Higley is currently serving as Appellate Defense Counsel, Appellate Defense Division, Navy Appellate Review Activity. He received the J.D. degree (Cum Laude) from the State University of New York at Buffalo in 1971. 1. 499 P.2d 832 (Ore. App. 1972). 2. Id. at 833. 3. Id. person, in other than capital cases, and with the consent of the trial judge, may elect to waive a jury trial, the Court of Appeals of Oregon rejected Carr's assertion. The court observed that the Constitution supported the trial judge's decision, and concluded that there "is nothing in the United States Constitution which is inconsistent with the Oregon constitutional provision. ."4 Citing only Singer v. United States,5 where the United States Supreme Court found no constitutional prohibition against conditioning the waiver of trial to a jury upon the consent of a trial judge, the Court of Appeals affirmed Carr's conviction. II. The ramifications of Carr should be studied with more than a little concern, and application of the principle of law announced in that case to military jurisprudence should be considered with caution. This caveat proceeds from the understanding that, while State and Federal courts often possess general criminal jurisdiction, courts-martial possess only "special and limited jurisdiction," and must be created in strict compliance with congressional legislation." The materials that follow will examine more closely the legal principle reflected in Carr by focusing on practice within the Federal criminal courts. A later portion of this note will discuss application of Federal practice to military law. It is contemplated that this discussion will be of assistance to general and special court-martial judges when they determine whether to approve an accused's request to be tried by judge alone. Finally, this note will conclude by returning to Carr and discussing the appropriateness of that decision. 8 The Federal Constitution guarantees every accused, except those tried for petty offenses, a trial by a jury of his peers. Does the correlative right, however, to demand trial by the court alone exist as a matter of constitutional doctrine? In Singer v. United States,10 the Supreme Court of the United States squarely faced the argument that a criminal defendant has the right to demand trial by court alone, and rejected the contention. Singer was charged with numerous mail-fraud violations, and upon appearing at trial, he offered in writing to waive trial by jury. The trial judge was willing to approve the waiver, but the Government refused to give its consent. The accused was subsequently convicted by a jury; the lower appellate court affirmed the conviction. Upon appeal to the Supreme Court, Singer argued 4. Id. 5. 380 U.S. 24 (1965). 6. Runkle v. United States, 122 U.S. 543, 555 (1887). 7. United States v. Dean, 20 USCMA 212, 43 CMR 52 (1970). 8. Duncan v. Louisiana, 391 U.S. 145 (1968). 9. U.S. CONST. amend VI. 10. 380 U.S. 24 (1965). that, not only does an accused have an unconditional constitutional right to a trial by jury, "but also a correlative right to have his case decided by a judge alone if he considers such a trial to be to his advantage." 11 The Court examined the common law and early Colonial practice regulating the mode of trial, and concluded that, while it was believed possible to try a criminal defendant without a jury, the evidentiary examples examined by the Court "in no way show that there was any general recognition of a defendant's right to be tried by the court instead of by a jury...." 12 Next, the Court examined the Constitution's provision for trial by jury, and the gloss applied to that provision through judicial interpretation. After reflecting upon opinions of an individual justice13 and the Court1 wherein the views were expressed that trial by jury was the only permissible method of trial, the Court focused on more recent cases and more notably, Patton v. United States.15 In Patton, the Supreme Court had examined the constitutional provisions 16 concerning trial of criminal cases by jury, and concluded that the provisions were "not jurisdictional, but . . . meant to confer a right upon the accused which he may forego at his election." 17 On the basis of Patton, the Supreme Court in Singer concluded: there is no federally recognized right to a criminal trial before a judge sitting alone, but a defendant can, as was held in Patton, in some instances waive his right to a trial by jury. . . .18 Finally, the Court examined whether the waiver of a constitutional right could be conditioned upon the consent of the "prosecuting attorney or trial judge," ," 19 and concluded that it could reasonably be so conditioned. The Federal Rules of Criminal Procedure provide that: Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.20 The Supreme Court expressly upheld the validity of the rule alluded to above and expressed some difficulty understanding how Singer could assert the "bald proposition" 21 that compelling a criminal defendant to undergo a jury trial contrary to his request deprived the defendant of a fair trial or due 11. Id. at 25-26. 12. Id. at 31. 13. United States v. Gilbert, 25 F.Cas. 1287 (C.C.D. Mass. 1834). 14. Thompson v. Utah, 170 U.S. 343 (1898). 15. 281 U.S. 276 (1930). 16. U.S. CONST. art. III, § 2 in part provides: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury. . . ." U.S. CONST. amend. VI in part provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . . 17. 281 U.S. at 298. 18. Singer v. United States, 380 U.S. 24, 34 (1965). 19. Id. at 34. 20. FED. R. CRIM. P. 23 (a). 21. Singer v. United States, 380 U.S. 24, 36 (1965). process of law. The Court stated that an accused's "only constitutional right" 22 with respect to the mode of trial was to an impartial jury, and found no constitutional impediment to conditioning the waiver of the right to trial by jury on the consent of the prosecutor or the judge: the result is simply that the defendant is subject to an impartial trial by jury-the very thing that the Constitution guarantees him. . . 23 The Federal court decisions prior and subsequent to Singer are uniformly in accord. In Hibdon v. United States,24 the court recognized that the trial judge "had authority in the exercise of a sound discretion to accept waiver and . . . to proceed to trial. . . without a jury." 25 In United States v. Holt,26 a case decided one year prior to Singer, the court observed that the record failed to demonstrate that the trial judge, who had withheld his consent, had failed to "exercise . . . 'sound and advised' discretion. . . . The court in Holt also expressed some difficulty accepting the contention that "trial by jury so zealously safeguarded by the Constitution, can be considered a denial of due process. ." 28 Moreover, in McCranie v. United States, 29 the trial judge had denied the accused's request to withdraw his waiver of a jury trial, and the appellate court affirmed after finding no abuse of discretion. In this latter case, the appellant complained that his waiver was "ineffective because the District Judge failed to sufficiently advise him of his right to a jury." 30 The court examined the trial judge's explanation of the accused's trial rights and found that they could not have been made plainer. Since permitting the accused to withdraw his waiver "when the entire jury venire had been dismissed . . . would have meant an unmerited continuance, " 31 denial of the request was proper. "30 The cases after Singer have recognized that "there is no constitutional right to a non-jury trial." 32 In addition, in United States v. Lutz,33 the court noted that it was permissible for the parties to change their minds with regard to the mode of trial upon a rehearing. There, at a prior hearing the accused had elected to be tried by court alone, which election was concurred in by the prosecutor and the court. The previous trial, however, resulted in a mistrial. At the subsequent proceeding, the accused again requested trial by 22. Id. at 36. 23. Id. 24. 204 F.2d 834 (6th Cir. 1953). 25. Id. at 837 (emphasis added). 26. 333 F.2d 455 (2d Cir. 1964), cert. denied, 380 U.S. 942 (1965). 27. Id. at 458 (emphasis added). 28. Id. 29. 333 F.2d 307 (5th Cir. 1964). 30. Id. 31. Id. 32. United States v. Bowles, 428 F.2d 592, 594 (2d Cir.), cert. denied, 400 U.S. 928 (1970). 33. 420 F.2d 414 (3d Cir.), cert. denied, 398 U.S. 911 (1970). 66 the judge, but the prosecution refused. The court found no prejudice, since 'once a mistrial was declared each party was free to assert or waive his rights." 34 According to the court, "the prosecution was not bound by its first waiver." 35 The paramount considerations of the trial judge when advising an accused of his alternative trial rights are first, to ensure a fair and impartial trial, and second, to determine whether the accused has made a knowledgeable and intelligent waiver of the right to trial by jury. As for a fair trial, the Supreme Court was quick to point out in Singer that: the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result. . . . The lower Federal courts have strived for fairness and impartiality, and have rejected contentions that an accused is denied a fair trial by a jury simply because the issues are complex,37 or because certain defenses may "bring out unpleasant aspects of defendant's background." 38 The concern, therefore, is for fair and impartial triers of fact and not "where the best interests of the defendant would . . . be served. . . ." 39 The second concern of the trial judge is that he obtain "the express and intelligent consent of the defendant" 40 whenever the accused requests to be tried by the court alone. In Cross v. United States,41 the court reflected on this duty of the trial judge, and stated that the accused who wants to waive the right to be tried by a jury must "be brought before the court, advised of the right, and then permitted to make an intelligent and competent waiver.'" 42 According to the Court of Appeals for the Fifth Circuit, "the record must reflect that it was deliberately, not inadvertently, done. That means that the jury trial must have been knowingly waived. That includes consent of the defendant." 43 It must be anticipated, therefore, that, in the absence of information available to the judge establishing that the accused is making a knowledgeable and intelligent decision, the request for waiver of jury trial would be denied. 34. Id. at 416. 35. Id. 36. Singer v. United States, 380 U.S. 24, 36 (1965). 37. United States v. Simon, 425 F.2d 796 (2d Cir. 1969). 38. United States v. Harris, 314 F. Supp. 437, 439 (D. Minn. 1970). See also United States v. Farries, 328 F. Supp. 1034 (D.M.D. Pa. 1971). 39. United States v. Hilbrich, 341 F.2d 555, 558 (7th Cir. 1965). 40. Patton v. United States, 281 U.S. 276, 312 (1930). 41. 325 F.2d 629 (D.C. Cir. 1963). 42. Id. at 631. 43. Horne v. United States, 264 F.2d 40, 43 (5th Cir.), cert. denied, 360 U.S. 934 (1959). |