One of the (few) pleasant surprises from the Republican Legislature has been some positive action on criminal justice issues.

Last year, for example, Governor Kasich signed a sentencing reform bill that promoted rehabilitation instead of incarceration for many offenders. In recent years, Ohio has also passed legislation establishing practices for witness identifications and has moved to more open discovery in the criminal justice system.

Which is why a bill passed by the Ohio House – HB 265 – designed to give a procedural advantage to prosecutors is so disappointing.

Bear with us for some brief criminal procedure.

The Constitution guarantees criminal defendants the right to have serious cases heard by a jury. In Ohio, the rules of criminal procedure provide that a defendant may choose to waive this right and have this or her case heard by a judge, instead.

The important thing is that the right to a jury trial belongs to the accused. The right to a trial by a jury is one of the foundations of democracy. The theory is that average citizens should stand between the power of the government and the accused.

There are a number of good reasons that an accused may decide to waive a jury trial. In some situations, the accused may hold unpopular views and believes that a jury would have a hard time evaluating the case fairly. In other situations, such as a particularly brutal murder, the accused may fear the nature of the crime charged will so “inflame the passions of the jury” that the jury will be convict based on otherwise insufficient evidence.

As one law professor we know put it, “We trust juries. Just not too much.” This can be illustrated best by a couple of movies.

In Twelve Angry Men, the jury eventually does a solid job sifting through the evidence before finally acquitting the defendant. Yet, consider this scene:

We are led to believe that without Henry Fonda, the jury would have found an innocent man guilty.

In To Kill a Mocking Bird, we are confronted by the dangers of a blatantly prejudiced jury in the South. In this movie, an innocent man is found guilty by a jury despite overwhelming evidence of innocence. Remember Atticus’ closing argument, when he knows that the jury will not do justice:

In both movies, the defendant likely would have fared better by having their cases heard by a single judge instead of having a jury trial.

Which brings us to this legislation. The bill that passed the Ohio House will take away a defendant’s choice to have a case heard by a judge instead of a jury. Instead, the bill would permit the prosecuting attorney to choose to have a case heard by the jury even when the defendant would prefer to have the case heard by a judge.

Prosecutors generally like this rule change. They know that a lot of cases are easier to prove to a jury than a judge. One former prosecutor gave a good example:

Some of the most difficult prosecutions involve allegations of sexual abuse of minors. In many of these cases, the testimony of the victim is problematic in some way. Often, the victim is or was too young to give coherent testimony. And, we are always concerned that an over-zealous or improperly trained (but well meaning) law enforcement officer or nurse examiner may taint the testimony by asking leading or improper questions during an investigation.

That said, as a prosecutor I knew that if I could get the child in front of a jury, I would almost always get a conviction. Juries are sympathetic to young witnesses, and are so angered by allegations of sexual abuse of children that that want to believe these witnesses. I was always surprised when a defendant chose to try one of these cases to a jury instead of a judge.

Is this bill unconstitutional? No.  Other states have used this approach for many years.

But is it a good idea? No. The trend in Ohio in recent years has been to recognize that the criminal justice system – like any other system created and operated by human beings – is not perfect. Whether it is through increasing the availability of DNA testing, placing limitations on the use of eyewitness identifications, or recognizing that confessions may not be as reliable as we one thought, the response has been to strengthen the procedural protections for criminal defendants.

We believe that people are innocent until proven guilty. Contact your state senator and urge a no vote on this bill to maintain as many procedural protections for criminal defendants as possible.