Alabama Rules of Criminal Procedure

Alabama Rules of Criminal Procedure

Rule 18. Trial by jury; waiver; selection and preparation of petit jurors.

Rule 18.1. Trial by jury.

(a)

RIGHT TO TRIAL BY JURY. Defendants in all criminal cases shall have

the right to be tried by a jury. In cases triable in the first instance in district or

municipal courts, the defendant shall have the right to trial by jury only on demand

upon appeal to the circuit court for trial de novo as provided in Rule 30.1. Upon

conviction in municipal or district court, the defendant shall be advised of the right

to appeal for trial de novo and to demand a jury trial.

(b)

WAIVER OF TRIAL BY JURY. In all cases, the defendant may waive his

right to trial by jury, with the consent of the prosecutor and the court, as follows:

(1)

When the defendant is tried in circuit court other than on appeal for

trial de novo, waiver of the right to trial by jury must be made by the defendant in

writing or in open court upon the record and with the consent of the prosecutor and

the court. Before accepting a waiver, the court shall address the defendant

personally in open court and shall advise the defendant of his or her right to a trial

by jury, and shall ascertain that the waiver is knowing, voluntary, and intelligent;

(2)

When the defendant appeals for trial de novo in the circuit court, he

or she must demand a jury trial in writing at the time of filing notice of appeal for

trial de novo, or within seven (7) days thereafter. Failure of a defendant to make a

timely demand for trial by jury shall be deemed to be a waiver by the defendant of

his or her right to trial by jury;

(3)

With consent of the court, the defendant may withdraw or set aside

any waiver of jury trial, but no withdrawal shall be permitted after the court begins

taking evidence; or

(4)

If trial has commenced before a jury on a plea of not guilty, the

defendant may withdraw the plea of not guilty and enter a plea of guilty, in which

event the court shall proceed as provided in Rule 14.4, and it shall not be

necessary that the plea or sentence be presented to, consented to, or approved

by the jury, except in capital cases.

(c) JURY OF LESS THAN TWELVE (12) MEMBERS. At the commencement of trial,

or at any time before return of a verdict, and with the consent of the court, the

defendant and the prosecutor may stipulate in writing, or in open court upon the

record, that the jury may consist of any number of jurors less than twelve (12) and

more than five (5). The court shall not accept an agreement to trial by less than

twelve (12) jurors unless the defendant, after being advised by the court of the right

to trial by twelve (12) jurors, personally waives the right. In any trial by a jury of less

than twelve (12), the verdict must be unanimous. This section does not apply to

prosecutions for capital offenses. See Ala.Code 1975, § 12-16232(c).

Committee Comments

Section (a) recognizes a defendant’s fundamental right to a trial by jury. This

right has been jealously guarded in Alabama through the Alabama Constitution, by

statute, and by case law. Art. I, § 6, Alabama Constitution of 1901, provides in

pertinent part “That in all criminal prosecutions, the accused has a right … [to] a

speedy, public trial, by an impartial jury of the county or district in which the offense

was committed ….”

More emphatically, Art. I, § 11, Alabama Constitution of 1901, provides,

“That the right of trial by jury shall remain inviolate.” (Emphasis added.) The phrase

“shall remain inviolate” has been interpreted to mean that the state is forbidden

“through the legislative, judicial, or executive department—one or all— from ever

burdening, disturbing, qualifying or tampering with this right to the prejudice of the

people.” Gilbreath v. Wallace, 292 Ala. 267, 271, 292 So.2d 651 (1974); Alford v.

State, 170 Ala. 178, 54 So. 213 (1910). Finally, Amendment No. 328, § 6.11, to the

Alabama Constitution of 1901 (the Judicial Article), illustrates that the right to trial

by jury remains inviolate. That section permits the Alabama Supreme Court to

promulgate rules of court practice and procedure with the limitation that “the right

of trial by jury as at common law and declared by Section 11 of the Constitution of

Alabama of 1901 shall be preserved to the parties inviolate.”

Since all felonies must be prosecuted on indictment by the grand jury, it is

clear that the trial of all felonies must be by jury unless waived. Art. I, § 6, Alabama

Constitution of 1901. The situation is more complicated with regard to

misdemeanors.

A defendant has a statutory right to a jury trial upon timely demand when

charged with the commission of any misdemeanor. Ala.Code 1975, § 15-14-30.

The provisions of this statute go beyond decisions of the United States Supreme

Court. In Duncan v. Louisiana, 391 U.S. 145, 160, 88 S.Ct. 1444, 1453, 20 L.Ed.2d

491 (1968), the Court held that “petty offenses” need not be tried with a jury. The

Court defined “petty offenses” in Baldwin v. New York, 399 U.S. 66, 70, 90 S.Ct.

1886, 1889, 26 L.Ed.2d 437 (1970), and held that “no offense can be deemed

‘petty’ for the purposes of the right to trial by jury where imprisonment for more than

six months is authorized.” Although § 15-14-30, Ala.Code 1975, specifically

addresses jury demand in circuit court, that section has been construed by the

Court of Criminal Appeals to apply also to an appeal to circuit court from municipal

court. Day v. City of Mobile, 439 So.2d 812 (Ala.Crim.App.1983). The rule applies

to state laws and municipal ordinances alike.

The first sentence of section (a) presumes that the petit jury will be

composed of twelve members. Although the United States Supreme Court has

upheld a state’s right to provide for a jury composed of less than twelve (12)

members, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970),

the Alabama Supreme Court has held in a long line of decisions that the jury

contemplated by Art. I, § 11, Alabama Constitution of 1901, is a common law jury

of twelve (12) and that a jury which consists of a lesser number is not constitutional.

Baader v. State, 201 Ala. 76, 77 So. 370 (1917); Collins v. State, 88 Ala. 212, 7 So.

260 (1889); Woodward Iron Co. v. Cabaniss, 87 Ala. 328, 6 So. 300 (1889). In its

most recent decision upholding a twelve-member jury, the Court concluded its

unanimous opinion with the statement, “In our considered judgment, if such a

radical restructuring of the judicial process is deemed wise or necessary, it must

be accomplished by constitutional amendment or enactment.” Gilbreath v. Wallace,

292 Ala. 267, 273, 292 So.2d 651, 656 (1974). Of course, these cases do not

pertain to the situation where the parties consent to trial by less than 12 jurors. See

Rule 18.1(c).

In Singleton v. State, 288 Ala. 519, 262 So.2d 768 (1971), the Alabama

Supreme Court held that waiver of jury trial in a noncapital felony case must be

made knowingly and intelligently and that the prosecutor and the court must

consent to it. To ensure that these requirements are met, subsection (b)(1) requires

the court to advise the defendant personally of his or her right to a jury trial and

further requires that the waiver be made either in writing or in open court on the

record.

The question has been raised whether a defendant has a right not to be tried

by a jury, i.e., if the defendant waives the right, can the state refuse to consent and

demand that the defendant be tried by jury. The United States Supreme Court in

Singer v. United States, 380 U.S. 24, 34-35, 85 S.Ct. 783, 78990, 13 L.Ed.2d 630

(1965), rejected the defendant’s argument that he had an unconditional right to

have his case tried by a judge alone, regardless of whether the prosecution and

the court consented to waive the jury. The majority opinion held:

“The ability to consent to waive a constitutional right does not

ordinarily carry with it the right to insist upon the opposite of that right….

“The Constitution recognizes an adversary system as the proper

method of determining guilt, and 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.”

However, the Alabama Supreme Court has held that a statute which requires

the consent of the state and the court to a defendant’s waiver of jury trial does not

entitle the state to request or the court to require a jury trial where the defendant

has waived the right. Ex parte Hall, 255 Ala. 98, 50 So.2d 264 (1951); Baader v.

State, supra. Thus, under Alabama cases, while the state could not demand a jury

trial, it was uncertain whether the state and court had to consent to a defendant’s

waiver. Under these rules, a defendant may not waive trial by jury unless consented

to by the court and the prosecution.

There has been much debate over whether the defendant’s right to waive

trial by jury should be absolute, i.e., without the consent of either the court or the

prosecution. ABA, Standards for Criminal Justice, Trial by Jury 15-1.2 (2d ed.

1986), left the issue open, providing for waiver of trial by jury. The Advisory

Committee concluded that although neither waiver as a matter of right nor

conditional waiver was “obviously superior” to the other. The arguments for waiver

tend to put the prosecution on more even ground with the defendant, in effect giving

“the people” a right to have a defendant’s guilt or innocence determined by a jury.

Section (a) is patterned after Ala.Code 1975, § 15-14-30, but differs in one

significant respect. Section (a) does not provide for a jury trial for a “minor

misdemeanor” as defined in Rule 1.4, since the defendant is in no danger of

confinement. The second sentence of section (a) is not in accord with Alford v.

State, 170 Ala. 178, 194, 54 So. 213, 217 (1911), where the court in an opinion by

Justice Mayfield said (at p. 194, 54 So. 213):

“But none of these statutes so upheld by this court required the defendant

to first submit to a conviction by the court or judge, before he was entitled

of right to demand or have a jury trial—thus compelling him to submit to two

trials, or, as it were, to be twice put in jeopardy for the same offense, in order

to obtain a jury trial. While in some cases they did provide for an appeal to

a jury from a conviction by the court or justice, they provided that the

defendant might obtain a jury trial in the first instance if he so desired.”

Under this rule, the defendant cannot avoid being tried in the district or

municipal court and cannot go directly to the circuit court for trial by jury in the first

instance other than by simply not contesting the issue and appealing the result. Of

course, in most instances the defendant will want both chances at an acquittal and

would not elect to remove his case if he could.

Section (b) provides for waiver of the right to a jury trial. Where the defendant

is charged with a felony offense, the heavier burden is on the State to show an

affirmative waiver. However, as to misdemeanor offenses [§ 15-14-30], failure by

the defendant to make a timely demand for a jury trial constitutes waiver of the

right. In Singleton v. State, 288 Ala. 519, 262 So.2d 768 (1971), the Alabama

Supreme Court held that a defendant may waive his or her right to a jury trial in a

non-capital felony case.

Subsection (1) sets forth the requirements for waiver of jury trial when the

defendant is charged with a felony offense. This rule is based upon Rule 23(a),

Fed.R.Crim.P., and ABA, Standards for Criminal Justice, Trial by Jury 15-1.2 and 1.3 (2d ed. 1986).

Subsection (2) restates the requirements of Ala.Code 1975, § 15-14-30, and

provides for waiver if the defendant fails to make a timely demand for a jury trial

where the defendant is in circuit court on an appeal for trial de novo. Failure to

make timely demand is a waiver. Due process requires that the waiver not be made

without any knowledge of the right, thus the requirement of informing the defendant

falls on the trial judge at the conclusion of the first trial. (See Section (a).) The

defendant can be tried before the judge and still have his appeal for trial de novo

by jury in the circuit court. Leaving this double trial provision hopefully will avoid

congestion of the circuit court dockets.

Subsection (3) provides that the court can allow a withdrawal of waiver

(either affirmative or by delay) for good cause, but not after taking evidence begins.

Conversely, subsection (4) allows a defendant to withdraw a not guilty plea and a

jury demand and proceed on a guilty plea to the judge alone. Since it is a knowing

waiver, it may apply as well to capital as to noncapital cases.

Section (c) allows the defendant to waive trial by a twelve-member jury. The

purpose of the addition is to provide a procedure for allowing a trial to begin with

less than twelve (12) jurors or, if begun with a twelve-member jury, to proceed

where a juror or jurors must be excused and there has been no provision for

alternatives. Kirk v. State, 247 Ala. 43, 44, 22 So.2d 431 (1945), provides authority

for this provision. In that decision, the Alabama Supreme Court upheld a local act

applicable to Jefferson County that provided as follows:

“At any stage of a trial [before verdict] … the parties may unanimously

consent in open court with legal effectiveness, to a discharge from further

duty of any member of the jury trying the case and to a continuation of the

trial and the rendition of a verdict by the remaining jurors. A verdict returned

by the remaining jurors shall be as valid and as legally effective as if it had

been returned by the full jury.”

To protect the defendant, Section (c) requires that the defendant understand

that he has a right to be tried by a twelve-member jury and that he may consent to

be tried by a lesser number. The provisions of section (c) are essentially the same

as those of ABA, Standards for Criminal Justice, Trial by Jury, 15-1.3 (2d ed. 1986).

The minimum limitation prevents falling below six (6) jurors even with consent. It

should be noted that while the ABA Standard would allow for less than a unanimous

verdict, subsection (c) requires that the verdict be unanimous.