I. Milton Widem, Chairman
William R. Breetz
Judge H. Maria Cone
Representative Robert Farr
Jon P. Fitzgerald
Robert W. Grant
Representative Michael P. Lawlor
Michael W. Lyons
Representative Arthur J. O'Neill
Mary Anne O'Neill
Joel I. Rudikoff
Edmund F. Schmidt
Joseph J. Selinger, Jr.
Judge Elliot N. Solomon
Professor Colin C. Tait
Professor Terry J. Tondro
Senator Donald E. Williams, Jr.

Seal-blue4.jpg (4041 bytes)

David D. Biklen
Executive Director

David L. Hemond
Chief Attorney

Jo A. Roberts
Senior Attorney

Connecticut Law Revision Commission
State Capitol
Room 509A
Hartford, Connecticut 06106-1591
(860) 240-0220
FAX (860) 240-0322
Email: lrc@po.state.ct.us


Brief Review of Right in 49 States to Jury Trial

for Minor Crimes

Prepared by David L. Hemond

September 28, 1998


Caveat
: This report reflects research on the laws of states other than Connecticut to determine whether and when those states allow prosecution of a minor offense without the right to trial by jury. Federal constitutional rights under Duncan and other federal cases guarantee the right to jury trial for any offense punishable by more than six months in prison (and possibly in other, unspecified, cases). States may grant the accused greater rights. This survey is intended to provide a basis for judging what rights our states have considered to be fundamental.

However, the complexity and nuances of some state provisions rival the complexity of that in Connecticut. Moreover, the fundamental issue of when the right to a jury trial is available is inherently complex. State criminal laws vary widely, those laws have changed considerably since the fundamental rights to jury trials were set, the line between civil and criminal penalties is often uncertain, and contempt cases, juvenile proceedings, and other proceedings affecting personal liberty, such as commitment for mental illness, are treated differently by the states. A state may purport to allow a jury trial for "any criminal matter" or "any matter threatening imprisonment" and yet deny the right in an environmental agency hearing where punitive "civil" penalties are imposed or in a commitment proceeding where a person’s "unsocial" conduct leads to confinement. Furthermore, some laws (ordinances, regulations, agency specific provisions) concerning certain minor offenses, such as "prosecutions" of city ordinances, and summary fines handled by minor magistrates, city courts, justices of the peace, and other minor officials or agencies may be treated as "civil offenses" or may not have been picked up by my research which was based on state constitutional provisions, appellate decisions, court rules, and statutes.

In short, this report is a broad survey that does not comprehensively address every nuance. The survey does not purport to answer peripheral questions with respect to a state’s treatment of contempt, juveniles, commitment, or civil penalties. Moreover, certain entries reflect simplifications that do not reflect exceptions to the rules as stated. Where an entry refers to "core criminal cases", it encompasses those felony and misdemeanor cases prosecuted by the state in the primary trial courts for which a fine or imprisonment can be imposed. It also signals the possibility that summary adjudications may be allowed in municipal or traffic courts or before other magistrates. Questions that remain or that subsequently arise after review of this report may deserve further research.

With those significant caveats, the report portrays the approach taken by the states to the right to jury trials. It finds a nationwide tension between the acknowledged fundamental right of an accused to trial by jury and the practical realities and occasional reluctance of states to fully implement that right with respect to minor offenses.

Alabama

Constitutional Provisions: Declaration of Rights, Article 1, sections 6 and 11.

Right of trial by jury applies in "all prosecutions by indictment". Section 6.

Right of trial by jury "shall remain inviolate". Section 11.

Statutes/Rules: Section 15-14-30 allows defendant in misdemeanor prosecution to demand jury trial. 13A-1-2 distinguishes "misdemeanors" and "violations". "Violation" applies where penalty is not more than 30 days. The Rules of Criminal Procedure, Rule 18.1, provides that the right applies "in all criminal cases". The Committee Comments to that rule state that the right does not apply to "minor misdemeanors" where there is no possibility of imprisonment.

Case law: Article 1, section 11 has been interpreted to provide the right of jury trial in all classes of cases that existed at common law. Crowe v. State, 485 SO. 2d 351 (1985). An old case (superseded by federal law) authorized imprisonment for up to 12 months without jury trial. Ex parte Brown, 63 Ala. 187 (1879). Ex Parte Duboise, 675 So. 2d 420 (1996) notes that the statutory rights to jury trial are greater than under Duncan. See also Deming v. City of Mobile, 677 So. 2d 1233 (1995) and Thomas v. City of Montgomery, 690 So. 2d 546 (1997). However, the right to jury trial has been held not to apply to violations of city ordinances, Birmingham v. Evans, 300 So. 2d 396 (1974).

Summary: State statutes provide a right to jury trial if penalty is more than 30 days, and the Court Rules explicitly provide a right to jury trial for all criminal cases. However, the comment to the rule suggests that the right under the rule only applies if there is a possibility of imprisonment. The state constitutional restriction is less restrictive than the federal provision and, as interpreted, allowed up to 12 months imprisonment without the right to a jury trial. Bottom line: the court rules provide a right to jury trial, as a minimum, where there is a possibility of imprisonment. The state constitution would allow restrictions on the right to a jury to the full extent allowed by Duncan.

Alaska

Constitutional Provisions: Declaration of Rights, Article 1, section 11.

Right of trial by jury applies in "all criminal prosecutions". Jury of twelve except not less than six in courts not of record.

Case law: Right to jury trial if possibility of imprisonment or if charge involves loss of valuable license, heavy fine, or "criminal" conduct. See Alexander v. City of Anchorage, 490 P.2d 910 (1971), Baker v. City of Fairbanks, 471 P.2d 386 (1970), and State of Alaska, Dept. of Revenue, Child Support Enforcement Division v. Paul Beans, Supreme Court No. S-8322 (4 September 98).

Summary: Court interpretation of constitution guarantees right to jury trial if threat of imprisonment, heavy fine, or sanction for "criminal" conduct.

Arizona

Constitutional Provisions: Article 2, sections 17, 23, and 24.

Right of trial by jury "shall remain inviolate". Sections 17 and 23.

Right to jury of not less than six applies in all criminal cases where sentence of death or 30 years or more is not authorized. Section 23.

Right to jury of twelve if death or 30 years or more. Section 23.

Right of trial by jury applies in "criminal prosecutions". Section 24.

Statutes: Section 21-102, provides for a six person jury for courts not of record.

Case law: O’Neill v. Mangum 445 P.2d 843 (1968) held that the Arizona Constitution distinguishes between petty and serious crimes and would allow imprisonment for six months without the right to a jury trial. However, a more recent case, City of Phoenix v. Jones, 541 P.2d 424 (1975), found that the state statutes guarantee the right to a jury trial in all prosecutions of state criminal offenses.

Summary: The state statute guarantees the right to a jury trial in all core state criminal cases. The state constitution would allow prosecution without a jury of actions threatening imprisonment for up to six months.

Arkansas

Constitutional Provisions: Declaration of Rights, Article 2, sections 10 and 21. (See also Article 7, section 43.)

Right of trial by jury applies in "all criminal prosecutions". Section 10.

No deprivation of life, liberty or property, except by judgment of peers "or the law of the land". Section 21.

Statutes/Rules: Rules of Criminal Procedure, Rules 31.5 to 35.1 provide right to jury trial in all criminal cases. Commentary to Rule 31.1 states that under Article 2, section 10 "an accused enjoys the right to a jury trial in all criminal prosecutions in a circuit court." The commentary notes that unlike Duncan, the state constitution, Article 2 section 10 and the relevant statutory authority do not distinguish between petty and serious offenses. See sections 16-32-202 and 16-16-1111.

Case law: Right to trial by jury applies to all felonies and misdemeanors unless waived. Winkle v. State, 841 S.W.2d 589 (1992). "Jury trial" means a jury of twelve, Byrd v. State, 879 S.W. 2d 435 (1994).

Summary: Right to jury trial applies in all core criminal cases.

California

Constitutional Provisions: Declaration of Rights, Article 1, section 16.

Right of trial by jury is an "inviolate right". Section 16.

Right of trial by jury expressly applies to misdemeanors . Section 16.

Statutes: Penal Code section 1042.5. Trial of an infraction shall be by the court.

Penal Code section19.6. "An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury…"

Case law: The state constitution adopted the common law right to a jury trial. People v. Wardlow, 173 Cal. Rptr. 500 (1981). Mitchell v. Superior Court, 783 P. 2d 731 (1989) holds that the state constitution guarantees the right to a jury trial in any case threatening imprisonment.

Summary: Statutory scheme distinguishes violations from misdemeanors to allow court trials of cases where imprisonment is not threatened. State constitution and statutes provide right to jury trial in any case in which imprisonment is threatened.

Colorado

Constitutional Provisions: Bill of Rights, Article 2, section 23.

Right of trial by jury shall remain "inviolate" in criminal cases.

In criminal courts not of record, jury may consist of less than twelve as prescribed by law.

Statutes: Section 16-10-101. "The right of a person who is accused of an offense other than a noncriminal traffic infraction or offense, or other than a municipal charter or ordinance violation as provided in section 16-10-109(1), to have a trial by jury is inviolate…"

Section 16-10-109 provides a right to jury trial for petty offenses, excepting only traffic and municipal offenses that are not punishable by imprisonment or a fine of over $500.

Case law: 1969 case law set the Constitutional limitation as 6 months or $500 fine. Austin v. City and County of Denver, 170 Colo. 448 (1969). Later case law cites the 16-10-109 statutory standard. Garcia v. People, 615 P 2d 698 (1980).

Summary: State statute affords right to jury trial in any case threatening imprisonment or a fine of over $500. The state constitution, however, is less restrictive and would allow imprisonment for up to six months without a jury trial.

Delaware

Constitutional Provisions: Bill of Rights, Article 1, sections 4 and 7.

Right of trial by jury applies in "all criminal prosecutions". Section 7

Statutes/Rules: See 11 section 5301, 11 section 5701, and 11 section 5901. See Superior Court Criminal Rules, Rule 23.

Case law. Constitutional protection does not apply to "petty" cases. A case imposing 90 days imprisonment is not "petty". State ex. rel. Colatriano v. Colatriano, 301 A. 2d 531 (Del. Super. Ct. 1972).

Summary: State affords constitutionally protected right to jury trial in all criminal cases in which imprisonment of 90 days or more is imposed.

Florida

Constitutional Provisions: Declaration of Rights, Article 1, sections 16 and 22.

Right of trial by jury applies in "all criminal prosecutions". Section 16.

Right of trial by jury "shall be secure to all and remain inviolate". Section 22.

Statutes: Section 918.0157 provides that defendant may demand right to trial by jury in any case punishable by imprisonment – except that there is no such right with respect to petty offense punishable by less than 6 months if the court announces that imprisonment will not be imposed if the defendant is convicted.

Case law: State v. Whirley, 421 So. 2d 555 (1982), approved Whirley v. State, 450 So. 2d 836 (1984) held that constitutional guarantee does not apply to petty cases punishable by no more than six months imprisonment and a $500 fine. Weber v. City of Fort Lauderdale, 675 So. 2d 696 (1996), however, held that the Whirley case only set a maximum penalty and that the court would also consider criteria other than the severity of punishment in determining whether a right to jury trial applies. The court cited the following criteria: (1) whether the crime was indictable at common law, (2) whether the crime involved moral turpitude, (3) whether the crime was "malum in se" or inherently evil, (4) the maximum possible punishment, (5) and whether a right to jury trial for the specific crime was recognized when the constitution was adopted. The accused in that case, facing a maximum sixty day sentence and $500 fine was held to be entitled to a jury trial.

Summary: Statute affords right to jury trial in any case in which imprisonment is threatened. Statute allows court trial in certain cases where imprisonment could be imposed if the court announces that imprisonment will not be imposed. The state constitution is less restrictive and rights under it are subject to analysis concerning the nature of the crime, the rights that applied when the constitution was adopted, and the maximum permissible punishment. In certain cases the constitution might would allow imprisonment for up to six months without a jury trial.

Georgia

Constitutional Provisions: Bill of Rights, Article 1, section 1, paragraph 11.

Right to trial by jury "shall remain inviolate" and applies in "criminal cases".

Right to trial by jury applies to superior court misdemeanor cases and in courts of limited jurisdiction but legislature may limit number of jurors to six in such cases.

Statutes: Section 17-9-2 provides that jury is to judge law and facts in trial "of all criminal cases." Section 16-1-3 defines misdemeanor as any crime other than a felony.

Case law: Court has held that the constitution refers to common law right as it existed in England, Beasley v. Burt, 201 Ga. 144, 39 SE 2d 51 (1946) and that the state provision guarantees continuation of pre-existing rights to jury trial only. See Pollard v. State, 96 S.E. 997 (1918) holding that a constitutional right to jury trial applied to felonies. However, a subsequent federal case, Ballew v. Georgia, 435 U.S. 223 (1978) overturned a state misdemeanor trial conducted with a jury of only 5 persons as allowed by state statute at that time. The maximum penalty under that charge was 12 months or $1,000, or both. The United States Supreme Court held that a state could not reduce the size of its jury for such a case below 6 persons. A state decision subsequent to Ballew has held that the right to trial by jury applies to misdemeanors. Clark v. State, 277 S.E.2d 738 (1981).

Summary: Express constitutional language and a court decision indicates that the right of jury trial applies in all misdemeanors. However, interpretation of the state constitution prior to Ballew was less protective of the right to jury trial than the federal constitution.

Hawaii

Constitutional Provisions: Bill of Rights, Article 1, section 14.

The accused shall enjoy the right to a speedy and public trial by an impartial jury in "all criminal prosecutions". Where crime is serious, jury must consist of twelve.

Statutes/Rules: Section 806-60 provides for a jury of twelve for serious crimes where imprisonment of six months or more possible. See also Rules of Penal Procedure, Rule 23.

Case law: Case law cites the federal standard and recognizes that right to jury trial applies to serious but not to petty offenses. Driving under the influence where the penalty is 30 days for a first offense, 60 days for a second offense, and 6 months is the maximum imprisonment was held to be "serious" and entitled the accused to a jury trial. See State v. Jordan, 825 P.2d 1065 (1992), State v. O’Brien, 704 P.2d 883 (1985) and State v. Shak, 466 P.2d 422 (1970).

Summary: Hawaii follows the federal analysis distinguishing between serious and petty crimes. However, the decisions implementation of that standard have provided a right to jury trial in cases that do not appear to be entitled to a jury trial under the federal rule. The possibility of a thirty day sentence may trigger the right.

Idaho

Constitutional Provisions: Declaration of Rights, Article 1, section 7.

Right to jury trial "shall remain inviolate". Legislature may provide for 5/6 verdict in misdemeanors. Not more than 6 jurors in misdemeanors.

Statutes/Rules: Section 19-1902 provides for a right to jury trial except in cases of an infraction punishable only by a penalty not to exceed $100 and no imprisonment. Criminal Rule 23 provides a right to jury trial "in all criminal cases."

Case law: Constitution guarantees right to jury trial whenever possible sanction includes imprisonment or fine punitive in nature. State v. Bennion, 730 P.2d 952 (1986). State v. Wheeler, 753 P. 2d 833 (1988) held that a charge of driving while intoxicated entitled the accused to a jury trial.

Summary: Right to jury trial guaranteed by constitution whenever threat of imprisonment or punitive fine. Right to jury trial provided by statute if threat of imprisonment or fine over $100.

Illinois

Constitutional Provisions: Bill of Rights, Article 1, sections 8 and 13.

Right to jury trial applies in "criminal prosecutions". Section 8.

Right of jury trial "as heretofore enjoyed shall remain inviolate". Section 13.

Statutes: Provide right to jury trial to every person charged with an offense. 725 ILCS section 5/103-6. Right to jury trial applies to prosecution under ordinance which is subject to court trial unless jury trial is demanded.

Case law: Constitution guarantees right to jury trial as it existed at common law. See People v. Beil, 395 N.E.2d 400 (1979). People v. Villareal, 449 N.E.2d 198 (1983) holds that statute applies to offenses where only fine may be imposed.

Summary: Statute provides right to jury trial in all criminal cases. Analysis under constitution, which bases right on preexisting common law right, might parallel federal analysis and may not guarantee jury trial for petty offenses.

Indiana

Constitutional Provisions: Bill of Rights, Article 1, sections 13 and 19.

Right to trial by jury applies in "all criminal prosecutions". Section 13.

"In all criminal cases whatever, the jury shall have the right to determine the law and the facts." Section 19.

Statutes/Rules: 35-37-1-1 and 35-37-1-2 require right to jury trial in all criminal cases.

See also Criminal Rule 22.

Case Law: Right to trial by jury applies to all misdemeanors. Jackson v. State, 644 N.E.2d 595 (1994), Belazi v. State, 525 N.E.2d 351 (1988).

Summary: The right to jury trial is required for all core criminal prosecutions.

Iowa

Constitutional Provisions: Bill of Rights, Article 1, sections 9 and 10.

Right to trial by jury "shall remain inviolate". Section 9.

Legislature may authorize jury of less than twelve in inferior courts. Section 9.

Right to trial by jury applies in "all criminal prosecutions, and in cases involving the life, or liberty" of an individual. Section 10.

Case law: Right to jury trial is absolute. State v. Lawrence, 344 N.W.2d 227, 229 (Iowa 1984). The right applies to all misdemeanors and no distinction is made between "petty" and "serious" offenses. State v. Henderson, 287 N.W. 2d 583 (1980). See also Criminal Procedure Rule 16.

Summary: State right to jury trial applies to all core criminal offenses.

Kansas

Constitutional Provisions: Bill of Rights, sections 5 and 10.

Right to trial by jury "shall be inviolate". Section 5

Right to trial by jury applies in "all prosecutions". Section 10.

Statutes: Section 22-3404(1) allows request of a jury trial for all misdemeanor, cigarette or tobacco infraction, and traffic infraction cases. Trials in the municipal court are to the court. See also subsection (5) which appears to provide that the trial of infraction cases are to the court. See also sections 12-4501, 12-4502, and 12-4509.

Case law: The constitutional right to trial by jury is the right that existed under common law. In re Rome, 542 P.2d 676 (1975). An older split decision found no right to trial by jury in police court cases. City of Fort Scott v. Arbuckle, 196 P.2d 217 (1948).

Summary: Constitutional right to trial by jury is only that provided by common law. No explicit statement found of where that line is. Statute provides right to trial by jury in all state misdemeanor cases, including some infractions, but municipal courts have power under ordinances to imprison. State constitution may be less restrictive than federal constitution.

Kentucky

Constitutional Provisions: Bill of Rights, sections 7 and 11.

Right to trial by jury shall "remain inviolate" subject to such modifications as authorized by Constitution. Section 7.

Right to trial by jury applies to prosecutions by indictment or information. Section 11.

Statutes/Rules: Section 29A.270 provides right to a jury trial in all criminal prosecutions including prosecutions for violations of traffic laws. See also Criminal Rule 39.01.

Case law: Commonwealth v. Sizemore, 488 S.W. 2d 685 (1972), excepts petty offenses from constitutional protection, citing the federal decision in Duncan and the common law right. In Donta v. Commonwealth, 858 S.W. 719 (1993), a threatened penalty of ninety days was held to be petty.

Summary: Constitution provides the "common law" protection that is subject to the "serious"-"petty" distinction set out in Duncan and would allow maximum imprisonment of at least ninety days without a jury trial. Statute, nonetheless, provides an extensive right to trial by jury for all state criminal prosecutions.

Louisiana

Constitutional Provisions: Constitution of 1974, Declaration of Rights, Article 1, sections 16 and 17.

Section 17 only provides a right to jury trial in cases in which the punishment may be imprisonment for more than six months.

Case law: Rule is clear that misdemeanor cases in which possible penalty does not exceed $1000 or imprisonment in excess of six months are not triable by jury. State v. Chiles, 514 So.2d 150 (1987), State v. Garrison, 154 So2d 400 (1963), State v. Skipper, 111 So. 481 (1927). See also Code of Criminal Procedure Article 779.

Summary: State does not provide a right of jury trial if penalty does not exceed $1000 or six months imprisonment.

Maine

Constitutional Provisions: Declaration of Rights, Article 1, section 6.

Accused may not be "deprived of life, liberty, property or privileges, but by judgment of that person’s peers or the law of the land."

Right to trial by jury applies in "all criminal prosecutions".

Case law: The right to a jury trial applies to all criminal proceedings, including prosecutions for petty offenses, but does not apply to traffic infractions or environment enforcement provisions, which are not "criminal proceedings". See State v. Anton, 463 A.2d 703 (1983), State v. Freeman, 487 A. 2d 1175 (1985), State v. Sklar, 317 A.2d 160 (1974), and DEP v. Emerson 616 A.2d 1268 (1992). See also Rules of Criminal Procedure, Rules 22 and 23.

Summary: Constitution protects right to trial by jury in all core criminal proceedings.

Maryland

Constitutional Provisions: Declaration of Rights, Articles 5 and 21.

Right to trial by jury applies "in all criminal prosecutions". Article 21.

Accused is entitled to "trial by jury, according to the course of the law". Article 5.

Statutes/Rules: 27 Section 593A of the criminal code provides that there is a no right to trial by jury in the court of general jurisdiction unless the offense is subject to the penalty of imprisonment or unless there is a constitutional right to trial by jury for the offense. Criminal Rule 4-311 implements the right to claim a trial by jury trial where it is "guaranteed".

Case law: Dorsey v. State, 466 A.2d 546 (1983) holds that state rights to a jury trial are not broader than those provided by the federal constitution. There is no right to a jury trial in a petty case. See Danner v. State, 42 A. 965 (1899), which has a fairly explicit discussion of what the common law right to a jury trial was, to the extent it could be determined.

Summary: Constitution protects common law right to jury trial and is subject to federal Duncan analysis. Statutes expressly provide right to jury trial where offense is subject to a penalty of imprisonment.

Massachusetts

Constitutional Provisions: Part the First, Article 12.

No person imprisoned "but by the judgment of his peers, or the law of the land".

No capital or infamous punishment "excepting for the government of the army and navy, without trial by jury."

Statutes/Rules: Chapter 278: section 2 provides for trial by jury of all issues of fact upon indictment or complaint in the Superior Court. Offenses prosecuted in lesser courts also afford a right to jury trial. See Chapter 218, section 26A and comment to Criminal Procedure Rule 19.

Case law: An advisory opinion of the state Supreme Court justices holds that there is no constitutional right to jury trial for petty cases. Opinion of the Justices to the Senate, 376 N.E. 2d 810, 825 (1978). See also In re DeSaulnier, 279 N.E.2d 287 (1971).

Summary: State constitution does not require a right to jury trial for petty offenses. The line as to what is constitutionally petty is unclear. Commentary in Massachusetts Practice Criminal Law, Nolan and Henry, section 61, states that the constitutional limit is the federal six months provision. The state statutes afford a right to jury trial for core criminal cases.

Michigan

Constitutional Provisions: 1963 Constitution, Declaration of Rights, Article 1, sections 1.1(14) and (20).

Right of trial by jury "shall remain". Section 1.1(14)

Right applies in "every criminal prosecution". May be less than twelve jurors if imprisonment for not more than one year. Section 1.1(20).

Rules: Code of Rules of Criminal Procedure section 6. 401 provides a right to jury trial for all defendants.

Case law: Right to jury trial applies to all cases including those before Justices’ courts. There is no exception for petty cases. People v. Henderson, 246 Mich. 481 (1929), People v. Martin, 256 Mich. 33 (1931), People v. Kirby, 487 N.W. 2d 404(1992). See also Code of Criminal Procedure sections 28.855 and 28.856.

Summary: State right to trial by jury applies to all core criminal cases.

Minnesota

Constitutional Provisions: Bill of Rights, Article 1, sections 4 and 6.

Right to trial by jury "shall remain inviolate". Section 4.

Right to trial by jury applies in "all criminal prosecutions". At least six jurors are required in nonfelony cases. Section 6.

Rules: Rules of Criminal Procedure, Rule 26.01 provides that offenses punishable by incarceration are entitled to jury trial. Other misdemeanors are tried to court.

Case law: Right to trial by jury applies in all criminal prosecutions regardless of gravity of offense. Ordinance violations are distinguished as not an offense against the state. Peterson v. Peterson 153 N.W. 2d 825 (1967). State v. Hamm, 423 N.W. 2d 379 (1988) provides that twelve jurors are required for misdemeanor trials.

Summary: Unable to reconcile case law and court rules. By case law, the right to trial by jury applies to all state prosecutions of criminal offenses. Court rules limit right to cases punishable by incarceration.

Mississippi

Constitutional Provisions: Bill of Rights, Article 3, sections 26 and 31.

Right to trial by jury applies in "all criminal prosecutions". Section 26.

Right to trial by jury "shall remain inviolate". Section 31.

Statutes: Right to jury trial applies to cases before a justice of the peace. Section 99-33-9.

Case law: McGowan v. State, 258 So.2d 801 (1972) cites the federal standards and holds that the right to jury trial does not apply to a case where the maximum penalty is not more than 6 months and a fine of not more than $500.

Summary: The state does not afford a right to a jury trial in cases where the maximum penalty is not more than 6 months or a fine of not more than $500.

Missouri

Constitutional Provisions: Bill of Rights, Article 1, sections 18(a) and 22(a)

Right to trial by jury applies "in criminal prosecutions". Section 18.

Right to trial by jury "shall remain inviolate". Section22.

Statutes/Rules: Section 546.040 provides that all issues of fact "in any criminal cause" shall be tried to a jury. Section 543.200 provides for right to jury in all misdemeanor cases. Rule of Criminal Procedure 27.01 provides for trial by jury in any case unless waived.

Case law: State ex rel. Col v. Nigro (Mo), 471 S.W.2d 933 (1971). There is no constitutional right to a trial by jury in municipal ordinance prosecution where the maximum period of imprisonment does not exceed six months. Federal standards of Duncan cited.

Summary: Statute provides right to trial by jury in all cases prosecuted by the state. However, the state constitution draws a distinction between petty and serious offenses following the federal standard and case law would allow a municipal ordinance prosecution without a jury trial where maximum imprisonment does not exceed six months.

Montana

Constitutional Provisions: Declaration of Rights, Article 2, sections 24 and 26.

Right to trial by jury applies in "all criminal prosecutions". Section 24.

Right to trial by jury "shall remain inviolate". Section 26.

Statutes: Section 46-17-201 provides for right to jury trial by six in misdemeanor cases.

Section 46-16-110 states right to jury trial for felonies.

Section 46-17-311(1) provides right to appeal from Justices courts with jury trial de novo.

Case law. See State v. Bender, 756 P.2d 1157 (1988). Right to jury trial applies in all criminal prosecutions.

Summary: Constitution and statutes give right to trial by jury in all core criminal prosecutions.

Nebraska

Constitutional Provisions: Article 1, sections 6 and 11.

Right of trial by jury "shall remain inviolate" but jury may consist of less than twelve in inferior courts. Section 6.

Right of trial by jury applies in "all criminal prosecutions". Section 11.

Case law: There is no constitutional right to a trial by jury for cases threatening six months imprisonment or less. State v. Kennedy, 396 N.W.2d 722 (1986).

Summary: There is no right to a trial by jury for cases threatening imprisonment of six months or less.

Nevada

Constitutional Provisions: Declaration of Rights, Article 1, section 3.

Right to trial by jury to "remain inviolate forever".

Statutes: Section 175.011 provides that district court trials are to a jury but requires that the defendant must demand jury trial not less than 30 days before trial in a justice’s court. Section 266.550 provides for summary trial in municipal courts.

Case law: Analysis uses federal standard. No right to jury trial for petty cases. Blanton v. City of N. Las Vegas, 109 S. CT. 1289 (1989).

Summary: Federal standard applies. No right to jury trial generally for cases threatening imprisonment of less than six months.

New Hampshire

Constitutional Provisions: Bill of Rights, Part 1, Article 15. (See also Article 16)

No subject may be imprisoned "but by the judgment of his peers, or the law of the land".

Statutes: Section 592-A:2-b provides that there is no right to a jury trial for a "violation" unless the aggregated penalties exceed $1,500. Section 606:8 provides for a jury trial of six for any offense punishable by imprisonment for any period not exceeding one year.

Case law: Constitution adopted common law right and serious/petty distinction. Threat of imprisonment for six months is not petty. Constitutional and statutory right to jury trial applies in all cases where the possible fine exceeds the amount that entitles a civil litigant to a jury trial. (Currently $1,500.) Opinion of the Justices (DWI Jury Trials), 608 A.2d 202 (1992), State v. Morrill, 465 A.2d 882 (1983), State v. Langone, 498 A.2d 731 (1985).

Summary: Statutory and probable constitutional right to jury trial for all cases threatening imprisonment or a fine in excess of $1,500.

New Jersey

Constitutional Provisions: Rights and Privileges, Article 1, sections 9 and 10.

Right of trial by jury "shall remain inviolate". Section 9.

Right of trial by jury applies in "all criminal prosecutions".

Statutes: Section 2C:1-4 creates the class of disorderly persons offenses for which there is no right to jury trial. Section 2C:43-8 provides that the maximum sentence for such an offense is six months imprisonment.

Case law: Constitution incorporated right from common law. State v. James, 114 A. 553 (1921). No right to trial by jury for petty offenses where penalty is six months or less and the fine $500 or less. Katz v. Elderedge, 118 A. 242 (1921). See also State v. Owens, 254 A.2d 97 (1969).

Summary: No right to jury trial for petty offenses where threat of imprisonment is six months or less and the possible fine is $500 or less.

New Mexico

Constitutional Provisions: Bill of Rights, Article 2, sections 12 and 14.

Right of trial by jury shall "remain inviolate". Section 12.

Jury in inferior courts may consist of six. Section 12.

Right of trial by jury applies in "all criminal prosecutions". Section 14.

Rules: Rules of Criminal Procedure section 5-605 provide a right to jury trial for all cases in the trial court except "petty" misdemeanors.

Case law: Constitution incorporated rights that existed at time of adoption of the constitution. No right to jury trial for petty offenses. Offense of driving while intoxicated where possible imprisonment for 90 days and $200 fine is petty. Hamilton v. Walker, 340 P.2d 407 (1959), Gutierrez v. Gober, 87 P.2d 437 (1939).

Summary: Constitution recognizes "petty/serious" distinction. No jury trial for petty cases. Precise line is uncertain, but imprisonment of 90 days with $200 fine is petty.

New York

Constitutional Provisions: Bill of Rights, Article 1, section 2. Article 6, section 18.

Right to jury trial inviolate forever "in all cases in which it has heretofore been guaranteed by constitutional provision".

Legislature may authorize trial of crimes without a jury, except for prosecutions by indictment.

Statutes: Section 260.10 provides that every trial of an indictment must be a jury trial.

Case law: New York has most convoluted provisions of any state. State constitutional restrictions are based on common law and other rights available at time that constitution was adopted. State statutes have provided right to jury trial for prosecutions of all misdemeanors except those prosecuted in the city courts of the City of New York. Those courts do not afford a right to jury trial for any offense threatening imprisonment of six months or less. That six month requirement in the New York city courts reflects the federal restrictions, rather than the state standard. However, certain aspects of the state constitution, such as the twelve man jury provision for cases prosecuted by indictment may be more restrictive than the federal provisions. This is all discussed in detail in the "practice commentaries" to Criminal Proceedings Law 340.40. See Morgenthau v. Erlbaum, 451 N.E.2d 150 (1983), People v. Erickson, 99 N.E.2d 240 (1951).

Summary: State constitution adopts "petty/serious" standards and is generally less restrictive than federal right to jury requirements. Cases threatening imprisonment of six months or less can be prosecuted without a jury in the city courts of New York.

North Carolina

Constitutional Provisions: Declaration of Rights, Article 1, section 24.

"No person shall be convicted of any crime but by the unanimous verdict of a jury in open court." Legislature may provide other means for trial of misdemeanors "with the right of appeal for trial de novo".

Case law: Initial court trial is allowed for misdemeanors but accused must have right to jury trial on appeal. State v. Hudson, 185 S.E.2d 189 (1971).

Summary: Right to jury trial applies in all core criminal prosecutions but misdemeanors may be initially tried to the court.

North Dakota

Constitutional Provisions: Declaration of Rights, Article 1, sections 12 and 13.

Right of trial by jury shall "remain inviolate". Section 13.

Right "to speedy and public trial" applies in "criminal prosecutions in any court whatever". Section 12.

Statutes/Rules: Right to jury of six for all misdemeanor prosecutions unless accused demands jury of twelve. See sections 29-16-02, 40-18-15, 29-01-06, and 29-17-12. See Rules of Criminal Procedure, Court Rule 23. Explanatory Note to the court rule provides: "The right to trial by jury is more extensive under North Dakota law than Federal law…"

Summary: Right to jury trial applies to all core criminal prosecutions. No exception for petty cases.

Ohio

Constitutional Provisions: Bill of Rights, Article 1, sections 5 and 10.

Right of jury trial "shall be inviolate". Section 5

Right of jury trial applies in "any trial, in any court…" Section 10.

Statutes: Section 2945.17 provides right to jury trial in any trial, in any court, for a violation of any statute, or any ordinance, except where the penalty does not exceed a fine of $100.

Case law: Constitutional right applies to felonies and serious misdemeanors. Constitution preserves the rights that applied at common law. Belding v. State ex rel Heifner, 169 N.E. 301 (1927). See annotated comments to Article 1, section 5.

Summary: Statute provides right to jury trial for any case in which the penalty exceeds a fine of $100. Constitution distinguishes between petty and serious offenses and provides a standard based on felonies and serious misdemeanors that may be similar to the federal provisions.

Oklahoma

Constitutional Provisions: Bill of Rights, Article 2 sections 19 and 20.

Right of trial by jury shall "remain inviolate", except, "in criminal cases wherein punishment for the offense charged is by fine only, not exceeding One Thousand Five Hundred Dollars ($1,500)". Section 19.

Right of trial by jury applies in "all criminal prosecutions". Section 20.

Statutes: Statutes provide for police and justice court proceedings with criminal prosecutions of offenses by court trial where allowed by constitution. See Title 22, Chapter 1, section 16.

Summary: Constitution provides explicit right of trial by jury for any case where possible fine exceeds $1,500. Right applies in all cases threatening imprisonment.

Oregon

Constitutional Provisions: Bill of Rights, Article 1, section 11.

Right of trial by jury applies in "all criminal prosecutions". Verdict may be by 10 in circuit court.

Case law: Right to jury trial does not apply to drivers license suspension proceedings. Gildroy v. Motor Vehicles Div., 888 P.2d 64 (1995).

Summary: Constitutional right to trial by jury applies to all core criminal prosecutions.

Pennsylvania

Constitutional Provisions: Declaration of Rights, Article 1, sections 6 and 9.

Right of trial by jury "shall be as heretofore" and shall "remain inviolate". Section 6.

Right of trial by jury applies in "prosecutions by indictment or information". Section 9.

Case law: Constitutional provision applies to every case where right would apply at time of adoption of constitution. Distinguishes between serious and petty offenses. Cases threatening imprisonment of six months or less are petty. Bacik v. Commonwealth, 434 A.2d 860 (1981), Commonwealth v. Koch, 431 A.2d 1052 (1981), Commonwealth v. Mayberry, 327 A.2d 86 (1974), Commonwealth v. Johnson, 234 A.2d 9 (1967). See Rule of Criminal Proceedure 83 providing for trial in summary cases.

Summary: Constitution distinguishes between serious and petty cases. Right to jury trial is not guaranteed in cases threatening imprisonment of six months or less.

Rhode Island

Constitutional Provisions: Declaration of Rights, Article 1, sections 10 and 15.

Right of trial by jury applies in "all criminal prosecutions". Section 10.

Right of trial by jury "shall remain inviolate". Section 15.

Case law: Constitution incorporates right of trial by jury as enjoyed at time of adoption of constitution. Constitution distinguishes between serious and petty offenses. State adopts federal Duncan analysis as to what constitutes petty. No right to jury trial is provided for cases threatening imprisonment of six months or less. See State v. Holliday, 280 A.2d 333 (1971), Advisory Opinion to the Governor, 437 A.2d 542 (1981), and District Court Rules of Criminal Procedure for Misdemeanor Cases, Rule 23.

Summary: State constitution distinguishes between serious and petty offenses and adopts federal standard for what constitutes a petty offense. No right to trial by jury generally for cases threatening imprisonment of six months or less.

South Carolina

Constitutional Provisions: Declaration of Rights, Article 1, section 14.

Right "shall be preserved inviolate". "Any person charged with an offense" has right to a jury trial.

Statutes: Statutory provisions for the various inferior courts provide a right to demand a jury trial. See 5-7-90, 14-9-180, 14-25-125, 22-2-150. Under section 17-23-80, verdict of jury (or appropriate substitute like a guilty plea) is required to convict any person indicted.

Case law: State constitution preserves rights to jury trial that existed when constitution adopted in 1869. Cooper v. Poston, 483 S.E.2d 750 (1997). Defendants in municipal courts have right to jury trial. 1989 Op. Atty. Gen. 89-60, p. 149.

Summary: Statutory and constitutional right to jury trial apply in any core criminal proceeding.

South Dakota

Constitutional Provisions: Bill of Rights, Article 6, sections 6 and 7.

Right of trial by jury "shall remain inviolate". Section 6.

Legislature may provide for jury of less than twelve in court not of record. Section 6.

Right of trial by jury applies in "all criminal prosecutions". Section 7.

Case law: Court distinguishes between petty and serious offenses (citing Duncan) but finds that any offense threatening imprisonment is serious and that right to jury trial may apply even if there is no threat of incarceration. However, possible fine of $100 and no imprisonment is petty. State v. Wikle, 291 N.W.2d 792(1980). See also City of Brookings v. Roberts, 226 N.W.2d 380 (1975).

Summary: State constitution provides right to trial by jury in any case threatening imprisonment. No right for offense charging possible fine of $100.

Tennessee

Constitutional Provisions: Declaration of Rights, Article 1, sections 6, 9, and 14.

Right of trial by jury "shall remain inviolate". Section 6.

Right of trial by jury applies in "prosecutions by indictment or presentment." Section 9.

All criminal offenses to be charged by indictment, presentment, or impeachment. Section 14.

Case law: Court recognizes distinction between petty and serious offenses but finds right to jury trial for any offense with imprisonment or fine in excess of $50 serious. City of Gatlinburg v. Goans, 600 S.W.2d 735 (1980), Howard v. State, 227 S.W. 36, 38 (1921).

Summary: Constitutional right to jury trial in any case threatening imprisonment or significant fine. (Fine in excess of $50 provided right to jury trial in 1921 case.)

Texas

Constitutional Provisions: Bill of Rights, Article 1, sections 10 and 15.

Right of trial by jury applies in "all criminal prosecutions". Section 10.

Right of trial by jury "shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency…" Section 15.

Statutes: Article 1.05. "In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury…."

Case law: Right applies to any case where enjoyed at time of adoption of constitution. Ex parte Quintanilla, 207 S.W.2d 377 (1947). Constitutional right applies to misdemeanors. Chaouachi v. State, 870 S.W.2d 88 (1993), Bearden v. State, 648 S.W.2d 688 (1983), Franklin v. State, 576 S.W.2d 621,623 (1978). See Code of Criminal Procedure Article 33.01.

Summary: Constitutional right to trial by jury applies to all core criminal offenses. No distinction made for petty offenses.

Utah

Constitutional Provisions: Declaration of Rights, Article 1, sections 10 and 12.

Right of trial by jury "inviolate" in capital cases. Section 10.

Legislature to establish number of jurors for nonfelonies which shall not be less than four. Section 10.

Right of trial by jury applies in "criminal prosecutions". Section 12.

Statutes: Section 77-1-7. Rights of defendant provides that, in criminal prosecutions, the defendant is entitled to speedy public trial by impartial jury. Section 76-3-205 provides that there is no imprisonment for infraction. Court Rule 17 provides that no jury trial is allowed for prosecution of an infraction. Right to jury trial on demand is provided in misdemeanors.

Case law: The court cites the federal standard in Duncan in holding that a possible fine of six months or $299 is petty and not entitled under the federal or state constitution to a jury trial of six. In that case, however, the defendant was entitled under the state constitution to a jury of four. State v. Nuttall, 611 P.2d 722 (1980).

Summary: State law is convoluted because of interplay of state and federal constitutional provisions. Essentially state is governed by federal Duncan standard for purposes of a full jury trial of six jurors. Jury of six is guaranteed if imprisonment in excess of six months is threatened. Otherwise, defendant is entitled to jury trial of four under state constitutional and statutory provisions with respect to a misdemeanor. Court rule authorizes a court trial with respect to infractions where no imprisonment is authorized.

Vermont

Constitutional Provisions: Declaration of Rights, Chapter 1, Articles 10 and 12.

Right of trial by jury applies "in all prosecutions for criminal offenses". Article 10th.

"[W]hen any issue in fact, proper for the cognizance of a jury is joined in a court of law, the parties have a right to trial by jury, which ought to be held sacred." Article 12th.

Case law: While constitution incorporates common law right to jury trial, court finds no constitutional distinction between felonies and misdemeanors and orders jury trial where possible $50 fine and no possibility of imprisonment. State v. Becker, 287 A.2d 580 (1972). See Rule of Criminal Procedure 23.

Summary: Constitution provides right to jury trial for all core criminal prosecutions.

Virginia

Constitutional Provisions: Bill of Rights, Article 1, section 8.

Right of trial by jury applies "in criminal prosecutions".

"Laws may be enacted providing for the trial of offenses not felonious by a court not of record without a jury, preserving the right of the accused to an appeal to and a trial by jury in some court of record having original criminal jurisdiction. Laws may also provide for juries consisting of less than twelve, but not less than five, for the trial of offenses not felonious,…"

Statutes/Rules: Section 19.2-258 provides right to jury trial for all misdemeanors. Section 19.2-258.1 re trial of traffic infractions, provides that traffic infractions may be tried without jury with right of appeal and trial by jury. Rules of Criminal Procedure Rule 3A:13 provides a right to jury trial for all cases in the trial court.

Case law: The constitutional provision incorporated prior English common law rights existing at the time the constitution was adopted. The court, in Ragsdale v. City of Danville, 82 S.E. 77 (1914), holding that the constitutional right does not apply to a fine of $10 under a municipal ordinance, discusses the history of the distinction between petty and serious offenses. See also McCormick v. City of Va. Beach, 363 S.E. 2d 124 (1987).

Summary: State constitutional provision recognizes a distinction between serious and petty offenses but demarcation line remains unclear. Statutory right to jury trial applies in all core criminal cases.

Washington

Constitutional Provisions: Declaration of Rights, Article 1, sections 21 and 22.

Right of trial by jury "shall remain inviolate". Section 21.

Legislature may provide for jury of less than twelve in courts not of record. Section 21.

Right of trial by jury applies in "criminal prosecutions". Section 22.

Statutes: Section 10.01.060 provides that no person "informed against or indicted" may be convicted except by verdict of a jury or guilty plea or where right to jury trial is waived.

Case law: Right to jury trial extends to every petty offense, regardless of nature of crime. However, court also recognizes legislative right to "decriminalize" such minor offenses as traffic offenses and infractions. City of Seattle v. Crumrine, 653 P. 2d 605 (1982), City of Pasco v. Mace, 653 P.2d 618 (1982).

Summary: State provides constitutional right to jury trial for all core criminal prosecutions excepting "decriminalized " violations with minor fines.

West Virginia

Constitutional Provisions: Bill of Rights, Article 3, section 14.

Right of trial by jury applies to trials "of crimes, and of misdemeanors, unless herein otherwise provided…"

Case law: Constitutional right to jury trial applies in all cases threatening imprisonment. City of Fairmont v. Schumaker, 375 S.E. 2d 785 (1988). See also Court Rule of Criminal Procedure 23.

Summary: State constitution provides right to trial by jury in all cases threatening imprisonment.

Wisconsin

Constitutional Provisions: Declaration of Rights, Article 1, sections 5 and 7.

Right of trial by jury "shall remain inviolate". Section 5.

Right of trial by jury applies "in prosecutions by indictment, or information". Section 7.

Statutes: Section 972.02 provides right to jury trial for all cases in trial court.

Case law: Constitutional protections apply to all misdemeanors, State v. Slowe, 284 N.W. 4 (1939), but do not apply to violations of municipal ordinances, Village of Menomonee Falls v. Michelson, 311 N.W.2d 658 (1981), City of Oshkosh v. Lloyd, 39 N.W.2d 772 (1949).

Summary: Constitutional protections apply to all state prosecutions of criminal offenses.

Wyoming

Constitutional Provisions: Declaration of Rights, Article 1, sections 9 and 10.

Right of trial by jury "shall remain inviolate in criminal cases". Jury in misdemeanors may consist of less than twelve but not less than six persons. Section 9.

Right applies in "all criminal prosecutions". Section 10.

Statutes: Section 7-11-102 provides for trial by jury in all criminal cases.

Case law: Court finds that constitutional right applies to all criminal prosecutions including violations municipal ordinances. Court recognizes distinction for petty offenses but finds that any offense threatening imprisonment is entitled to a jury trial. Court finds further that charge of driving while intoxicated, even if no possible imprisonment for offense charged, entitles accused to jury trial. City of Casper v. Cheatham, 739 P.2d 1222 (1987), Brenner v. City of Casper, 723 P.2d 558 (1986), Lapp v. City of Worland, 612 P.2d 868 (1980).

Summary: Statute provides right to jury trial in all core criminal cases. Constitution provides right to jury trial in all cases threatening imprisonment and in other cases based on severity of penalty and character of crime charged.

Report to Judiciary Committee re Right to Jury Trial for Misdemeanors