Separate opinion of
Mr. Justice Santana Becerra,concurring.
San Juan, Puerto Rico, February 21, 1968
Aside from the fact that the better rule of law according to our own doctrine requires that the original judgment be reconsidered, a study of the statistics convinces me even more of the imperative need that the judges be extremely careful in scrutinizing the circumstances concerning the waiver of the trial by jury, as well as the waiver of an adversary suit.
The right to a trial by jury in cases of felony was decreed by the People in the Constitution of 1952. Later, for its greater effectiveness, Rule 111 of the Rules of Criminal Procedure overruled the former rulings which allowed the waiver of this right by the action of the attorney, notwithstanding the constitutional character of the guarantee..
*740In the period. comprised between 1956-57 and 1966-67, excluding the year 1961-62, 22,830 cases of felony and involuntary manslaughter with the right to trial, by jury were decided by prosecution-and hearing.1 Of this total, 8,083 or 35% (,.349) were decided .by jury verdict. Sixty-five percent by the court without a jury. In the years 1957-58 and 1958-59, the. percent of verdicts was less than the average, 33%. The 40% in the year 1966-6.7 has been the highest. In 1961-62, 854 cases out of 3,380 cases of felony and involuntary manslaughter were decided by jury.2
The waiver of the right to trial by jury may be in a particular situation or under particular circumstances of a case, a fact which forms part of the strategy of defense, intelligently conceived.
The experience accumulated presents, however, a picture of almost routinary waivers of the jury trial,., and in situations, in most cases, in which either because of the nature of the offense charged or because of the attendant circumstances, there would never be a better opportunity of acquittal by the court without a jury than by a jury which, actihg as a court of the People, passing judgment on a fellow creature, has the means.of expediency to do justice — even without violating the course of conduct governing it — which is barred to the judge who presides the trial.3
*741• In another aspect, the accumulated experience' shows that where the delinquent comes from a higher social sphere, which is not from where the bulk of defendants comes, ordinarily there is no waiver of the jury.
Obviously, the trial by the judge is simpler, saves time, less elaborate, and the work of the attorneys in court requires less tension.
In view of the explosion of judicial matters, notable and critical in the criminal sphere, the volume of work of counsel for the defense and prosecuting attorneys may create the tendency or inclination towards the simpler and less exacting in time and work proceeding, in exchange for which perhaps there may be mutual concessions. Here the active and watchful' action of the judge must enter for the protection of a constitutional right which belongs to the citizen on trial, not to his attorney, nor to the convenience or needs of the system.
This active and watchful intervention of the judge is more indispensable when one bears in mind that the bulk of defendants comes from the social stratum most unprepared and less conscious of their constitutional rights, and therefore, less prepared to waive intelligently such rights.
Cases of misdemeanors which, there being- concurrence of jurisdiction, were originally conducted before the Superior Court, áre not included. Rule 111 of the Rules of Criminal Procedure of 1963; § 178 of the Code of Criminal Procedure of 1902.
It is impossible to obtain an exact breakdown of the verdicts of guilty in this number of 3,380 cases, but everything indicates that for this year the percent of verdicts was not greater than the average.
Statistics of the Office of Court Administration.
These concepts of John H. Wigmore, published in 1929, recently reproduced in Judicature, Oct. 1967, express the idea with more precision:
“Law and justice are from time to time inevitably in conflict. That is because law is a. general rule (even the stated exceptions to the rules are general exceptions); while justice is the fairness of this precise 'case under all its circumstances.Law — the ■ rule^-mus't be enforced — the exact *741terms of the rule, justice or no justice. . . . Now this is where the jury-comes in. The jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case. Thus the odium of inflexible rules of law is avoided, and popular satisfaction is preserved. . . . That is what jury trial does. It supplies that flexibility of legal rules which is essential to justice and popular contentment. And that flexibility could never be given by judge trial. The judge . . . must write out his opinion, declaring the law and the findings of fact. He cannot in this public record deviate one jot from those requirements. The jury, and the secrecy of the jury room, are the indispensable elements in popular justice.”