In response to the Boston Globe Special Report on OUI bench trials in Massachusetts, the Globe reported that prosecutors are seeking legislation requiring prosecutors to consent to a bench trial. Assuming this report is accurate, this legislation would have to apply to every type of criminal case as legislation relating to criminal procedure cannot be crime specific. This legislation if proposed would be an unconstitutional violation of a defendant’s right to a fair trial under the Sixth Amendment.

The apparent aim of the legislation is to combat the perceived high rate of not guilty verdicts in Massachusetts OUI bench trials. This legislation would clearly be unconstitutional under the Sixth Amendment. The Sixth Amendment provides that a defendant in a criminal case enjoys certain rights: These rights include the right to a speedy trial and the defendant enjoys a right to a trial by jury. The use of the word “enjoys” in the Constitution provides strong textual support for the argument that a defendant can waive this right.

The right to a trial by jury was added to the Bill of Rights because the Framers of the Constitution feared that judges would not be impartial to defendants because their salary depended on the rule of the King. The original intent of the jury trial was to limit the power of Government and ensure that citizens judged citizens. The right to a jury trial is not Constitutionally required in all cases; in minor offense, with no possibility of jail time, there is no Constitutional right to a jury trial.

The United States Supreme Court discussed the historical origins of the right to a jury trial in the case of Duncan v. Louisiana, 391 U.S. 145 (1968). This case held that a State could not deny a defendant a right to a jury trial because the 14th Amendment due process clause makes the right to a jury trial applicable to the States. The language of the Duncan decision clearly indicates that right to select a bench or jury trial is solely that of the defendant.

Constitutional rights are granted to defendant’s in criminal case to ensure that the power of the Government is limited and that the rights of citizens are protected through an enduring Constitutional right and not made subject to the political climate of the time. Though the Constitution does not speak of a right to a bench trial, the right has been part of this country since its formation.

Similarly, while the Constitution grants a defendant a right to counsel, the United States Supreme Court held in Faretta v. California, 422 U.S. 806 (1975) that a defendant has the negative Constitutional right, that to waive counsel and represent himself pro se. Other Constitutional rights, like the right to a speedy trial, can also be waived by a defendant.

The historical context of the right to jury trial indicates that it has always included the negative right to waive a jury trial. Additionally, the history of the jury trial right has been in attempting to expand its application, to a greater number of offenses and to make it applicable to the States. Accordingly, there is strong historical support and textual support in the Constitution that the right to a jury or bench trial is the exclusive right of a defendant.

Further, in considering the Constitutionality of legislation, courts consider the intent of the legislature. The motivation for the legislation would be the Boston Globe Special report on OUI cases which signaled out a few judges for criticism based on statistics and the political agenda of district attorneys who were unhappy with decisions by selected judges. As a Massachusetts DUI lawyer, any legislation requiring prosecutors to consent to a bench trial would be a clear violation of the Sixth Amendment.