Ark. Code Ann. § 16-89-108 (2020)
Waivers of trial by jury and death penalty
- In all criminal cases, except where a sentence of death may be imposed, trial by a jury may be waived by the defendant, provided the prosecuting attorney gives his or her assent to the waiver. The waiver and the assent thereto shall be made in open court and entered of record. In the event of waiver, the trial judge shall pass both upon the law and the facts.
- In all criminal cases where the punishment is death, the prosecuting attorney, with permission of the court, may waive the death penalty and in those cases punishment cannot be fixed at more than life imprisonment.
- In all criminal cases where the maximum punishment is death by electrocution and the defendant waives a trial by jury, the court must determine that the defendant's waiver is voluntary and is not made in response to any promise or threat and that the waiver is freely made without fear or compulsion.
History. Init. Meas. 1936, No. 3, § 28, Acts 1937, p. 1384; Pope's Dig., § 3912; Acts 1971, No. 124, §§ 1, 2; A.S.A. 1947, §§ 43-2108 — 43-2108.2.
Cross References. Assent by prosecutor, ARCrP 31.1.
Capitol felonies, ARCrP 31.4.
Personal request, ARCrP 31.2.
Waiver of death penalty, § 5-4-608.
Case Notes
Agreements.
There is no federal rule binding the state courts to use a 12-member jury in state criminal prosecutions, and an agreement to proceed with an 11-member jury in accordance with state law and court rules is not a violation of the constitutional right to trial by jury. Vinston v. Lockhart, 850 F.2d 420 (8th Cir. 1988).
Credibility of Witnesses.
Where the trial court sits as a jury, the court is sole judge of the credibility of witnesses. Maples v. State, 225 Ark. 785, 286 S.W.2d 15 (1956).
Death Penalty.
In no case where a death sentence may be imposed may a jury be waived. Carson v. State, 198 Ark. 112, 128 S.W.2d 373 (1939); Scarber v. State, 226 Ark. 503, 291 S.W.2d 241 (1956).
Evidence.
Evidence sufficient to show that defendant's right to trial by jury was not violated. Ford v. State, 222 Ark. 16, 257 S.W.2d 30 (1953); Moore v. State, 241 Ark. 335, 407 S.W.2d 744 (1966).
Knowing and Intelligent Waiver.
Presuming waiver of right to a jury trial from a silent record is impermissible; the record must demonstrate that the defendant knowingly, intelligently, and understandingly waived his right to a jury trial, and anything less is not waiver. Williamson v. Lockhart, 636 F. Supp. 1298 (E.D. Ark. 1986).
Where the defendant was never made aware, either by the trial court or his attorney, that the choice confronting him was to be tried by jury of his peers, or to have his guilt or innocence determined by the judge, the defendant was deprived of sufficient information to make a knowing and intelligent waiver of the right to a jury trial. Williamson v. Lockhart, 636 F. Supp. 1298 (E.D. Ark. 1986).
Prosecutor's Consent.
The assent of the prosecuting attorney to defendant's waiver of a trial by jury was for the benefit of the state and not the defendant, and his failure to assent did not invalidate the waiver. Scates v. State, 244 Ark. 333, 424 S.W.2d 876 (1968).
Although the record failed to show the prosecuting attorney affirmatively gave his consent to defendant's waiver of a jury trial, such consent was presumed from his presence at the time the waiver was made and his failure to object. Scates v. State, 244 Ark. 333, 424 S.W.2d 876 (1968).
Where the prosecuting attorney did not give his assent to the waiver by defendants of their right to a jury trial, the court did not err in compelling trial by jury for possession of marijuana. Hooper v. State, 257 Ark. 103, 514 S.W.2d 394 (1974).
Requirement under subsection (a) of this section and Ark. R. Crim. P. 31.1, that a prosecutor approve defendant's request to plead guilty and waive a jury trial, did not violate defendant's due process rights because the sentencing scheme codified at §§ 16-90-801 — 16-90-804 did not create a liberty interest in protecting from exposure to higher ranges of sentences. Whitlow v. State, 357 Ark. 290, 166 S.W.3d 45 (2004).
Punishment.
State's waiver of the death penalty did not preclude the jury from sentencing the accused to life imprisonment without parole. Butler v. State, 261 Ark. 369, 549 S.W.2d 65 (1977).
Cited: Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975).