Right to a jury trial in New York is opt out, not opt in

Oh, those checks and balances.

Sometimes, it appears that our Founding Fathers put too much faith in branches of the government to check one another instead of helping one another to take away people's civil rights.

A shining example is New York state constitutional right to a jury trial.

The New York Constitution requires a written waiver of the right to a jury trial in cases where trial by jury existed before the State Constitution was adopted.

As a practicing trial lawyer, I can affirmatively state that this right is routinely violated by the courts in criminal cases, and violated by the Legislature and the court in civil cases.

In criminal cases, I have yet to see a written waiver of a jury trial signed by a criminal defendant.  I raised that issue in an appellate court, but the appellate court, as it usually does, ignored the constitutional issue and affirmed the appeal despite a glaring constitutional violation.

In civil cases constitutional violations of the right to a jury trial are no less glaring.  Many scholars consider motions for a summary judgment as an.unconstitutional encroachment upon the right to a jury trial, since only the jury can determine facts in a civil case and whether there are outstanding issues of fact.

Yet, if that issue is open for a scholarly debate, the issue of whether the right for a jury trial in civil cases is an opt out (a written waiver of the right to a jury trial is required before such a jury trial is waived, and a civil litigant must be provided a jury trial in a civil case by default) or an opt in (no jury trial unless civil rights litigants ask for such a right and pay a fee for such a right) is not open for debate.

The New York State Constitution clearly says it is an opt out right.

The New York State Legislature, sworn to uphold the New York State Constitution, clearly says it is an opt in right.

A cuvil litigant will not get a jury trial unless he or she asks for it in writing, within a short period of time after a plaintiff's trial note of issue is filed, if the litigant is a defendant in a civil action, and when the litigant is filing a trial note if issue if he or she is a plaintiff in a civil action. In both cases, a fee is charged by the New York state court to have a jury trial.

In view of the fact that over 80% of New York litigants cannot afford an attorney, and would not know to ask for a jury trial, which is supposed, under the state Constitution, to be provided by default, this legislative amendment of the New York State Constitution undoubtedly results in the majority of pro se litigants not asking for a jury trial, especially that for many people, having to pay extra $65.00 for such a right makes a material difference.

I wonder - will New York courts ever start to honor the New York State Constitution they are also sworn to protect and stop depriving people of their right to a jury trial, in civil and criminal cases, by default, unless litigants file a written waiver of such a right after being explained by the court what they are doing?

Cheating people out of their constitutional right to a jury trial, no doubt, is intentional.

It saves counties and the court system money and hassle to handle jury trials, it relieves congestion of the court calendar, it steers litigants not knowing of such a right into settlements, and it gives a practically absolute power to judges to decide cases that should have been decided by juries, with less predictable results than with judges.

A jury trial is one way to fight potential judicial corruption and fixing cases.  Such a default right exists for a reason, and it is a gross excess of power for both the New York Legislature and the state courts to make such trials an opt-in right, and an opt-in at a fee in civil cases, rather a right by default, with the constitutional requirement of a written waiver strictly adhered to.