dissenting:
I cannot accept the majority’s conclusion that the provision in the Illinois Constitution that guarantees to an accused the right to a jury trial also guarantees to an accused the unconditional right to demand a bench trial. For that reason I must dissent from the court’s holding that the statute that requires the prosecutor’s consent to a defendant’s jury waiver in a variety of criminal cases is unconstitutional.
The Illinois Constitution contains two separate provisions that guarantee the right of an accused to a jury trial. Article I, section 8, of the constitution, applicable only to criminal proceedings, parallels the sixth amendment of the United States Constitution and provides, among other things, that “the accused shall have the right *** to have a speedy and public trial by an impartial jury.” (Ill. Const. 1970, art. I, §8.) Our three earlier constitutions contained similar provisions. (See Ill. Const. 1870, art. II, §9; Ill. Const. 1848, art. XIII, §9; Ill. Const. 1818, art. VIII, §9.) A second jury trial guarantee appears in article I, section 13, of the constitution. Applicable to both civil and criminal proceedings, article I, section 13, states, “The right of trial by jury as heretofore enjoyed shall remain inviolate.” (Ill. Const. 1970, art. I, §13.) Similar provisions were found in our previous constitutions. (See Ill. Const. 1870, art. II, §5; Ill. Const. 1848, art. XIII, §6; Ill. Const. 1818, art. VIII, §6.) Although neither jury trial guarantee purports to grant to an accused the right to waive a jury trial and demand a bench trial, the majority would derive a constitutional mandate to that effect from the language of article I, section 13, and from case law touching upon the corresponding provision of the 1870 constitution.
The majority acknowledges that a different rule prevails in the Federal courts. In Singer v. United States (1965), 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783, the Supreme Court unanimously upheld the validity of Rule 23(a) of the Federal Rules of Criminal Procedure, which requires that a defendant’s waiver of a jury in a Federal prosecution be approved by both the court and the government. Reviewing the historical antecedents of our Federal constitutional right to trial by jury, the Court noted that the waiver of jury trials was virtually unknown at English common law until early in the nineteenth century. The American colonial experience provided some evidence that the colonists believed that it was possible to try a criminal defendant without a jury, but there did not appear to be a general recognition of a defendant’s right to waive a jury and be tried by the court alone. Finally, earlier Federal cases interpreting the jury trial guarantee had indicated that there was no absolute right to demand a bench trial. Singer held:
“In light of the Constitution’s emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him.” 380 U.S. at 36, 13 L. Ed. 2d at 638, 85 S. Ct. at 790.
The majority, however, believes that a different result must obtain under Illinois law. As the majority recounts, People ex rel. Swanson v. Fisher (1930), 340 Ill. 250, recognized that a jury waiver by a defendant in a criminal case does not deny the trial court jurisdiction over the proceedings. In People v. Scornavache (1931), 347 Ill. 403, a divided court ruled, on grounds of public policy, that a prosecutor may effectively veto an accused’s waiver and insist that the case be tried before a jury. In 1941 the legislature enacted a statute that empowered an accused alone to waive a jury trial. In People v. Scott (1943), 383 Ill. 122, the court declared the 1941 statute unconstitutional, ruling that the provision encroached on the authority granted to the judicial system by article VI, section 1, of the constitution (Ill. Const. 1870, art. VI, §1). In People v. Spegal (1955), 5 Ill. 2d 211, the court overruled Scott, holding that the 1941 jury waiver statute, declared invalid in Scott but not repealed in the meantime, was not an unconstitutional encroachment on the powers of the judiciary. (5 Ill. 2d at 220-21.) Spegal also noted that the legislature, in enacting the jury waiver statute, had rejected the Scornavache court’s view of public policy and thus had “removed the only basis upon which the prevailing opinion in the Scornavache case rested.” Spegal therefore overruled Scornavache as well. 5 Ill. 2d at 222.
It would appear, from the text of the jury trial guarantee of article I, section 13, of the Illinois Constitution, and from the prior decisions of this court, that there is no basis for the majority’s conclusion that an accused enjoys a constitutional right to demand a bench trial, in addition to his right to demand a jury trial. As the decision in Spegal demonstrates, this court has previously given effect to the legislature’s expressions of public policy on the subject of jury waivers. The majority opinion in this case, however, thwarts the public policy expressed in the instant statute and now finds in our constitution an overriding principle that bars further action by the legislature.
The majority asserts, as one of two grounds for its holding in this case, that Spegal “settled with finality the issue of an accused’s right to waive a jury under our 1870 constitution.” (126 Ill. 2d at 221.) That conclusion appears to rest on Spegal’s quotation of a passage from the dissenting opinion in Scornavache:
“ ‘The requirement of the prosecution’s consent to the defendant’s waiver of a jury trial is sought to be justified in the opinion on the ground that the “thing guaranteed” to the defendant “is not the right to waive a jury trial but the right to have such a trial.” Before there can be the power to waive a jury trial, the right to such a trial must exist. The framers of the constitution were concerned with the essential right out of which the power to waive would arise. They took cognizance of the existence of an accused person’s right to a jury trial and they safeguarded that right by giving it a constitutional order and dignity. The power to waive follows the existence of the right, and there is no necessity of guaranteeing the right to waive a jury trial.’ ” (Spegal, 5 Ill. 2d at 218, quoting Scornavache, 347 Ill. at 419 (DeYoung, J., dissenting).)
The majority apparently interprets that statement as suggesting that the constitutional guarantee of the right to a jury trial carries with it an implicit guarantee of the right to waive a jury. Under that view, the jury trial provision in the constitution serves double duty, granting not only the right to a jury trial but also the opposite right to demand a bench trial.
The same contention was rejected in Singer v. United States (1965), 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783. There the Court said:
“The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right. For example, although a defendant can, under some circumstances, waive his constitutional right to a public trial, he has no absolute right to compel a private trial [citation]; although he can waive his right to be tried in the State and district where the crime was committed, he cannot in all cases compel transfer of the case to another district [citations]; and although he can waive his right to be confronted by the witnesses against him, it has never been seriously suggested that he can thereby compel the Government to try the case by stipulation.” (380 U.S. at 34-35, 13 L. Ed. 2d at 638, 85 S. Ct. at 790.)
Singer’s reasoning is not restricted to the Federal Constitution and is equally applicable here. The right to demand a jury trial, guaranteed by the Illinois Constitution, does not entail an additional right to demand a bench trial. There is nothing in the language of the jury trial right, standing alone, that also guarantees the opposite right.
Moreover, I do not agree with the majority that the material from the Scornavache dissent quoted in Spegal represents the holding of Spegal. The majority’s interpretation of Spegal cannot be reconciled with the remainder of the opinion in that case, in which the Spegal court clearly indicated its view that the 1941 statute that granted to an accused the right to waive a jury trial was not an unconstitutional encroachment on judicial authority. Discussing the holding in Scott as well as other decisions pertaining to the powers of the judiciary, Spegal said:
“None of these cases, however, goes so far as to assert an inherent power in the judiciary to override the choice of the parties in determining whether a particular case is to be tried by a jury or by the court, or to override the determination of the legislature as to the method of trial to be employed where a jury trial is not required by the constitution.” 5 Ill. 2d at 220.
Later in Spegal the court made clear that it viewed as dispositive the 1941 statute that had been declared unconstitutional in Scott. (5 Ill. 2d at 221-22.) If the Spegal court believed that an accused had a constitutional right to demand a bench trial, then Spegal’s resurrection of the 1941 law granting that right as a statutory matter was completely unnecessary. For these reasons, I do not agree with the majority — or with the concurring opinion, which makes a similar claim (126 Ill. 2d at 224-25 (Clark, J., concurring)) — that Spegal recognized a right under the Illinois Constitution to waive a jury trial and demand a bench trial.
The general jury trial guarantee contained in article I, section 13, of the Illinois Constitution provides, “The right of trial by jury as heretofore enjoyed shall remain inviolate.” As a separate basis for its holding in this case, the majority contends that the phrase “as heretofore enjoyed” was intended to capture within the jury trial right all aspects of that right that were in existence in 1970, when the current constitution was adopted. (126 Ill. 2d at 215-21.) Under the majority’s analysis, all existing features of the jury trial right, including those established by case law or statute, were engrafted onto the jury trial right as guaranteed by the 1970 constitution.
The majority’s sweeping view finds no support, however, in either the constitutional text or the records of the proceedings of the constitutional convention. Apart from the deletion of an outmoded reference to civil trials before justices of the peace, article I, section 13, of our current constitution is identical with the corresponding provision in the previous constitution (see Ill. Const. 1870, art. II, §5). The Bill of Rights Committee proposed to retain, unchanged, the general jury trial guarantee provided by the 1870 State constitution, with the exception of the deletion of a reference to trials before justices of the peace. (See 6 Record of Proceedings, Sixth Illinois Constitutional Convention 26-28.) Proposals were made to allow the use of nonunanimous verdicts and of juries with fewer than 12 members in civil and criminal cases, but those ideas were not adopted, and the language appearing in the current constitution is the same as that proposed by the Bill of Rights Committee. There is no reason to conclude, as the majority does, that the retention of the language “as heretofore enjoyed” in the current constitution’s description of the general jury trial right was intended to “constitutionalize” all existing judicial and statutory law pertaining to the right. Indeed, it has been noted that “[t]he term ‘as heretofore enjoyed’ is unquestionably ambiguous” (Ill. Ann. Stat., Ill. Const. 1970, art. I, §13, Constitutional Commentary, at 566 (Smith-Hurd 1971)), and the majority is unable to muster any evidence that the phrase was designed to specifically adopt the holding of a particular case or the provisions of a specific statute. I am not prepared to accept the majority’s argument that the phrase “as heretofore enjoyed” was intended to work a wholesale incorporation of the case law and statutory law in effect when the current constitution was adopted, in the absence of a definite statement to that effect in the constitutional text or in the records of the constitutional convention.
Even if the phrase “as heretofore enjoyed” in article I, section 13, of our constitution operated in the way claimed for it by the majority, the provision would not support the conclusion reached here. As I have indicated, Spegal rested on grounds entirely different from those asserted in the majority opinion and does not stand for the principle that an accused enjoys, under the Illinois Constitution, the right to compel a bench trial. And I do not believe that it can be seriously argued that the 1970 convention delegates intended to incorporate into the jury trial guarantee the provisions of the 1941 jury waiver statute. Had the delegates wanted to grant that right, they could have included a provision guaranteeing to an accused not only the right to a jury trial but also a right to demand a bench trial. The drafters of the constitution did not include such a provision, however. Cf. Singer v. United States (1965), 380 U.S. 24, 31, 13 L. Ed. 2d 630, 635, 85 S. Ct. 783, 788 (if the colonists had recognized an absolute right to demand bench trials, “it would be difficult to understand why Article III and the Sixth Amendment were not drafted in terms which recognized an option”).
Nothing in our constitution, in the proceedings of the convention at which it was drafted, or in the prior decisions of this court supports the majority’s conclusion that the constitutional guarantee of a right to a jury trial also includes a right to demand a bench trial. I would hold that the statutory requirement of prosecutorial consent to an accused’s waiver of his jury trial right does not violate the jury trial guarantees of the Illinois Constitution. The majority’s result in this case presents an interesting anomaly. Defendants tried in Federal courts in Illinois may not, pursuant to Federal practice, waive a jury trial without the consent of both the prosecutor and the trial judge. Despite the similarities between the Federal and State jury trial guarantees, defendants in criminal proceedings in State courts in Illinois may, under today’s decision, “call the shots” and compel a bench trial without the consent of the prosecutor, even though the legislature has expressed a contrary view. That result is unwarranted, unwise, and constitutionally unsupportable, and therefore I dissent.