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State v. Biegenwald3/5/1987
een tried without a jury, the proceeding shall be conducted by the judge who accepted the defendant's plea or who determined the defendant's guilt and before a jury empaneled for the purpose of the proceeding. On motion of the defendant and with consent of the prosecuting attorney the court may conduct a proceeding without a jury. (Emphasis added.)
In addition, Rule 1:8-1(a) specifically requires the consent of the prosecutor as a condition to a defendant's waiver of a jury in the sentencing phase of death penalty proceedings.
The prosecutor's stated reason was that a jury that had witnessed defendant's trial, had determined his guilt, and was intimately familiar with the facts of the case, would be in the best position to determine, on the basis of the evidence, whether the factual prerequisites for imposition of the death penalty had been established.
In denying defendant's motion for a non-jury sentencing proceeding, the trial court observed that even if the prosecutor had consented, the court would not have acceded to the waiver. The court's "basic reason" for this position was a belief that in capital sentencing the collective wisdom of the jury is preferable to a determination by a single judge.
On this appeal defendant argues that because the sentencing phase is a "separate and distinct criminal proceeding[ ], a defendant must be afforded a constitutional right to waive a jury trial, which right is not subject to the unilateral rejection of a prosecuting attorney." The opportunity for prosecutorial veto of the waiver of jury trial, claims defendant, violates his "constitutional right to trial by jury, which of necessity embodies the consequential right to waive this protection" -- a protection "long established for [defendant's] benefit." He does so without providing any authority for the proposition that he has a right to waive a jury.
We disagree with defendant's sixth amendment claims. The case law is clear on this matter. In Singer v. United States, 380 U.S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965), involving a prosecution for violation of a mail fraud statute, petitioner, arguing in favor of his unrestricted right to waive a jury and submit to a non-jury trial, made contentions similar to those
urged by this defendant: that the constitutional provisions relating to jury trial are "for the protection of the accused," and that his "unconditional right . . . to a trial by jury" gives rise to "a correlative right to have his case decided by a judge alone if he considers such a trial to be to his advantage." Id. at 25-26, 85 S. Ct. at 785, 13 L. Ed. 2d at 632-33. Specifically, petitioner challenged Rule 23(a) of the Federal Rules of Civil Procedure, which, like our Rule 1:8-1(a), called for the consent of the government and the approval of the court before defendant's waiver of jury trial could be recognized. Id. at 24, 85 S. Ct. at 783, 13 L. Ed. 2d at 632. The Supreme Court concluded that "the Constitution neither confers nor recognizes a right of criminal defendants to have their cases tried before a judge alone," id. at 26, 85 S. Ct. at 785, 13 L. Ed. 2d at 633, and hence the Federal Rule calling for the government's consent and the court's approval "sets forth a reasonable procedure governing attempted waivers of jury trials." Id.
In the course of his opinion for the Court in Singer, Chief Justice Warren reviewed the English common law of trial by jury, the colonial experience, and the Constitution and its judicial interpretations. Id. at 27-34, 85 S. Ct. at 786-90, 13 L. Ed. 2d at 633-37. From all of these he drew the co
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