The provision of Delaware’s Constitution that “[t]rial by jury shall be as heretofore”16 applies equally to criminal cases.17 This phrase incorporates by reference the common law right to trial by jury, and any analysis of the right to a trial by jury, as it is guaranteed by the Delaware Constitution, requires an examination of the common law.17.1
In addition, the Delaware Constitution provides that “[i]n all criminal prosecutions the accused hath the right to a speedy and public trial by an impartial jury,” 18 and that “[t]he General Assembly may give by law to any inferior courts” jurisdiction over certain misdemeanors and “may regulate this jurisdiction, and may provide that the proceedings shall be with or without indictment by grand jury, or trial by petit jury.”19
Thus, under the Delaware Constitution the General Assembly has the power, which it has exercised, to eliminate trial by jury for misdemeanors tried in courts of inferior jurisdiction. This, however, must be harmonized with the federal Constitution, which preserves the right to trial by jury in all trials for “serious” offenses.20 Under, guidelines set by the United States Supreme Court, an offense for which the maximum penalty is more than six months is a “serious” offense.21 If the statute setting the penalty does not fix the maximum penalty, the punishment actually imposed determines the seriousness of the offense in deciding whether the defendant had a right to a trial by jury. Since in such a case the actual penalty that will be imposed is not known in advance, the trial judge may hold a very brief hearing in advance to determine whether the seriousness of the offense charged requires a jury trial.22
16. Del. Const. art. I, § 4.
17. See Claudio v. State, 585 A.2d 1278, 1297 (Del. 1991) (citing Documents of the Constitution Revision Commission, Commentary on the Proposed Constitution, Proposed Section 1.02 (1969)).
17.1. Capano v. State, 781 A.2d 556, 669 (Del. 2001); Claudio v. State, 585 A.2d 1278, 1298 (Del. 1991).
18. Del. Const. art. I, § 7.
19. Del. Const. art. IV, § 28.
20. See Duncan v. Louisiana, 391 U.S. 145, 148-54 (1968), reh’g denied, 392 U.S. 947 (1968); Sudler v. State, 611 A.2d 945, 947 (Del. 1992).
21. Duncan v. Louisiana, 391 U.S. 145, 159 (1968), reh’g denied, 392 U.S. 947 (1968); Van Arsdall v. State, 524 A.2d 3, 9 n.1 (Del. 1987); Clements v. Family Court of Kent County, 401 A.2d 72, 74 (Del. 1979); Thomas v. State, 331 A.2d 147, 150 (Del. 1975).
22. Clements v. Family Court of Kent County, 401 A.2d 72 (Del. 1979); Thomas v. State, 331 A.2d 147, 150 (Del. 1975); State ex rel. Colatriano v. Colatriano, 301 A.2d 531, 533 (Del. Super. 1972).
© 2010 David L. Finger